By Mike Toten Freelance Writer

The Fair Work Commission (FWC) has strongly criticised the manner in which the HR function of a business made one of its own team members redundant, resulting in unfair dismissal and compensation of almost $7,000.

FACTS OF CASE

The employee was an HR Consultant in a team of eight that was split between New South Wales and South Australia. After her team leader in SA advised that she was taking parental leave, a job ad that didn’t name the employer appeared on Seek, asking for an HR Manager in a temporary role in SA to cover an employee on parental leave. The company also advertised a role for someone with specialist workplace relations (WR) experience, to be based in Queensland – this time identifying itself as the employer.

At around the same time, the Chief People Officer (CPO) identified the employee for redundancy.

The employee became aware of the Seek ad. She was upset that the job was not advertised internally and believed that the employer had deliberately tried to exclude her from applying.

Four days after a team meeting that did not mention redundancies, the employee was called into a meeting at short notice and given a letter terminating her employment. The explanation was that her role was redundant because the employer wanted to add WR expertise to the team, and because there were no redeployment options for her. The “redundancy” was immediate.

Five days later, the employer advertised on Seek for an HR Manager (Industrial Relations) to be based in SA, this time identifying itself.

The employer claimed that it needed to increase the level of WR expertise in the HR team, and it selected the employee for redundancy because she was the only Consultant in the team and lacked the expertise it was looking for (in fact, she did have some previous WR experience). It had not advertised the region the job was located in, because it was considered likely to deter potential applicants.

The employee claimed that she could have been redeployed to any one of the three advertised jobs.

DECISION

The FWC found that the employer had sufficient operational reasons to justify a redundancy, but had not sufficiently considered whether the employee could have been redeployed to any of the new jobs. It found that her 20 years HR experience and qualifications would have made her suited to the temporary HR Manager role in SA, and it was “arguably reasonable” to let her consider the job in Queensland. This meant that her termination was not a genuine redundancy.

The employer gave her very short notice of redundancy, even though it had made the decision a month earlier.  This failure to consult and allow her to prepare for the outcome blindsided her and made the dismissal unfair.  The FWC rejected the employer’s claim that it did not consult with her because it was not legally obligated to – it did not provide any other reason for not consulting.

The FWC heavily criticised the employer, noting that one of the roles of an HR function was to “minimise unfairness” and ensure correct procedures were followed with redundancies – yet HR had unfairly treated one of its own team members. It awarded compensation of $6,923 to the employee, who had found another job two months later.

WHAT THIS MEANS FOR EMPLOYERS

Workplace relations legislation places a strong emphasis on “genuine consultation” when redundancy is being considered. This requires giving the employee early warning of it, discussing options, seriously considering possible redeployment, and providing opportunities for the employee to mitigate his/her potential losses and consider a future career path.

The FWC concluded that this employer did none of those things, which meant that a potentially genuine redundancy became an unfair dismissal.

READ THE JUDGMENT

Rewadee Piemyoosuk v Como Glasshouse No2 Pty Ltd [2024] FWC 1550 (14 June 2024)