Employer obligations to consult with ‘Award and Agreement free’ employees

A recent ruling by the Fair Work Commission’s Deputy President Ian Masson highlighted the exposure employees have who are not covered by an Award or Enterprise Agreement.

In July 2020, the Applicant made an unfair dismissal application to the Fair Work Commission (the Commission) alleging that he had been unfairly dismissed and seeking an order for compensation.

ACS Property services (the Respondent) raised a jurisdictional objection to the application on the grounds the termination was a genuine redundancy.

The Applicant had been employed in September 2019 as a Marketing Coordinator.

On 19 June 2020, the Respondent met with the Applicant via a Zoom Meeting to advise the Applicant that he was considering the termination of the Applicant`s employment on the basis of redundancy.

A follow up telephone conversation with the Applicant took place on 21 June 2020.

The Respondent then proceeded with the dismissal and confirmed this with a letter to the Applicant dated 25 June 2020.

The letter set out the reasons for the dismissal which included information about the outcome of a recent review including the effect of Covid -19 and the effect of this review on the Applicant`s position. The dismissal took effect from 8 July 2020.

The Respondent gave evidence that the Applicant’s role was no longer required and that some of the tasks formerly undertaken by the Applicant had been divided between other remaining staff. The Applicant disagreed and contended that duties he previously provided were still required.

Following the dismissal, the Applicant met with the Respondent and put forward alternatives to his dismissal for the Respondent`s consideration.

The Applicant took issue with the fact that the Respondent failed to meet with him until 14 July 2020 in respect of the decision to make him redundant. The Respondent attributed his inability to meet face-to-face with the Applicant to the Victorian Government’s restrictions and the Respondent’s own business restrictions during the pandemic.

Deputy President Masson considered whether the dismissal was a genuine redundancy, what industrial instrument the Applicant was covered under and whether redeployment was an option.

In the Deputy President`s ruling he found that the dismissal by the Respondent was a case of genuine redundancy and that the Applicant had not been unfairly dismissed for the reasons set out below:

  • the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise
  • the Applicant was not covered in his employment by a modern Award or enterprise agreement therefore the obligation for the Respondent to have complied with particular consultation obligations does not arise
  • it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au

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