By Mike Toten Freelance Writer

An employee with limited English-speaking skills was unfairly dismissed when his employer didn’t allow him a support person or interpreter during the process of making him “redundant”, and also immediately replaced him with a new employee. The decision highlights that employers need to take the personal circumstances of employees into account, and provide “vulnerable” ones with some extra assistance when contemplating redundancies.

Facts of case

The employee was a factory hand in a meat processing plant. He was employed as a casual, having declined previous offers to convert to permanent employment. He had very limited English skills. 

He was called into a meeting without warning and told he was being made redundant due to a business downturn creating the need for cost-cutting. There was evidence of the business incurring losses, but it also hired a replacement employee just before dismissing him. The employer claimed that the new employee had more skills, including a forklift licence (the dismissed employee had been operating forklifts despite failing the Australian licence test twice – he had a Malaysian licence but it wasn’t recognised in Australia). Forklift use comprised about 70% of the job content. The employer claimed that lack of the licence, plus limitations in some other required skills, was the reason he was selected for redundancy.

The meeting was conducted entirely in English, with no interpreter or support person provided, and no prior warning. There was no consultation process either before termination of employment occurred.

Two months later, and after the employee had lodged a claim with the Fair Work Commission (FWC), the employer offered him another job at another factory 230 kilometres away. On advice from his union, he rejected it, claiming it was impracticable to relocate and that he had lost trust and confidence in the employer, who was opposing his FWC application. He had also arranged other work by then.

Decision

The FWC found that the “redundancy” was in fact an unfair dismissal. Consultation requirements under the award were ignored and a replacement employee was immediately hired (negating the claim of a need for cost-cutting). The meeting was a termination meeting, with a decision already made and no discussion or consultation occurring. The employer did not take account the vulnerability of the employee, despite reasonable means to mitigate the situation being readily available to it.

The FWC said that it was reasonable for the employee to have rejected the later job offer, given it involved relocation and he had since arranged other work.

The FWC awarded compensation of $19,786 plus superannuation.

What this means for employers

Where an employer is more vulnerable than usual (eg limited/no English, unskilled), employers should consider taking extra steps to ensure they get a “fair go” when redundancy or dismissal arises. This may include extra consultation steps, assistance with gaining local skills and qualifications, provision of a support person and interpreter during the process, etc. Lack of attention to those steps tipped the scales towards this case being an unfair dismissal instead of a redundancy.

But in any case, this was an example of unfair dismissal because of the lack of any consultation, and hiring a new employee meant it was not a genuine redundancy either.

Read the judgment

Mr Badrin Baharom v Master Butchers Co-Operative Limited - [2024] FWC 2706 | Fair Work Commission