By Mike Toten Freelance Writer

A small business that cut off an employee’s access to her work while she was annual leave, then told her she was redundant on the day she returned to work, was found to have unfairly dismissed her. The employer breached the redundancy consultation provisions of the employee’s award.

FACTS OF CASE

The employee was an office manager in a business with 12 employees.

She took three weeks annual leave. Before taking it, she was told that an agency would be contracted to perform her work in her absence. Previously when on annual leave, she had continued to perform some work duties, such as payroll management. While on leave, the agency contacted her to obtain her work passwords. Her access to her work emails, accounts and fuel card was then removed.

On her return to work, she discovered that the agency employee had taken over her desk, and gave her a letter giving notice of redundancy, while preventing her access to management and her personal belongings.

The employer claimed that it had decided to restructure the business during her absence on leave, and her job would be performed partly by agency staff and partly by another employee. It based its decision on a fees schedule provided by the agency.

The award covering the employee required the employer to consult with her about proposed major workplace changes before deciding whether to make her redundant. It also required that she receive an opportunity to mitigate any adverse effects from being made redundant. No consultation occurred, the employer made the decision in her absence and prepared the documents to implement it.

DECISION

Because of its failure to consult with the employee, the employer unfairly dismissed her. The Fair Work Commission estimated that a reasonable period for consultation in this case was two days, and awarded compensation of $654 plus superannuation to cover it.

WHAT THIS MEANS FOR EMPLOYERS

Employers are required to genuinely consult with employees about proposed redundancy before making their decision to do it. Genuine consultation includes looking at alternative options to redundancy and giving the employee an opportunity to mitigate the effects of the decision. If this does not occur, a tribunal or court is likely to rule that what happened was not a genuine redundancy, but an unfair dismissal.

READ THE JUDGMENT

Sharon Harris v Newnham Trucking Pty Ltd - [2024] FWC 1320 | Fair Work Commission