FWC again highlights importance of consultation preceding redundancy

A Melbourne chef, who was made redundant in July 2020 when the hotel that employed her claimed the city’s second coronavirus lockdown left it with no choice but to close, has been found to have been unfairly dismissed and awarded compensation by the Fair Work Commission (FWC).

The chef, who had worked for the hotel for over 15 years, did not initially challenge her employer’s advice regarding redundancy – which had been issued by email, claiming discussions in person were “not possible in the current environment” – because the chef said the correspondence made it “abundantly clear” her role was being made redundant whilst she understood the business was debating “permanent closure”. Her unfair dismissal claim was filed out of time in November, when the chef noticed an advertisement on the hotel’s Facebook page for a 35-40 hour per week chef position, and Commissioner Cirkovic of the FWC determined the matter after awarding the chef an extension of time to pursue her claim.

Although concluding the chef’s termination did not constitute a ‘genuine redundancy’, the Commissioner accepted the hotel had “sensible and credible reasons” for ending the chef’s employment, given it evidenced a gross income of $55,000 between April and November 2020, as compared to an amount exceeding $400,000 over the same period in 2019. In addition, Commissioner Cirkovic accepted the employer’s evidence that the Facebook advertisement for a ‘chef’ was an “overly ambitious advert” placed by one of the hotel’s managers, and they had instead re-engaged two former casual bar workers who performed no kitchen duties. Despite the redundancy not being a sham, the Commissioner found the termination to be unfair as the employer failed to engage the chef in a meaningful consultation process, as required by the Hospitality Industry (General) Award 2020, prior to enacting the redundancy.

In reference to the employer’s decision to inform the chef of her redundancy by email, Commissioner Cirkovic dismissed stated concerns by one director that it was a “stressful period” and that any conversation about the chef’s dismissal would have been “emotionally charged” due to the pandemic and her personal circumstances. In addressing the claim that face to face discussions could not be held because of lockdown, the Commissioner noted that nothing prevented the employer from calling the chef or arranging to speak to her via other means.

In finding the dismissal to be unfair by virtue of the lack of consultation preceding termination, the chef was awarded two weeks’ wages as compensation. Commissioner Cirkovic reasoned the amount was attributable to the further period the chef would have remained employed, if the hotel had complied with the award’s consultation provision and engaged in the required discussions with the intent of considering any measures to avoid or reduce the adverse effects of the redundancy on the employee.

Sposito v Maori Chief Hotel [2021] FWC 700 (12 February 2021)