Pregnant worker’s redundancy, not a sham but “very definition of unfair”

An employee who was pregnant at the time her role was made redundant last year has been awarded compensation by the Fair Work Commission, with Deputy President Boyce finding her employer’s “abject failure” to consult properly with her rendered her dismissal “the very definition of unfair”.

Importantly, the Deputy President accepted the job the Customer Service Representative (CSR) had been doing was no longer being done by anyone, but he found the dismissal did not constitute a “genuine redundancy” because the consultation process which preceded the redundancy had been severely lacking.

The employer sought to argue that it consulted with the CSR at “either/or” a meeting in March 2019, further meetings in April and May or a June meeting in which it announced that her redundancy would take immediate effect. In contrast, the CSR claimed the March ‘meeting’ consisted of her supervisor having made a “general comment to a large cohort of staff” that was intended to foreshadow changes to the business whilst in April when her supervisor met with her, she was only asked to describe her work processes and was never warned her about her potential redundancy. The Deputy President rejected the employer’s submissions that the CSR’s supervisor had notes from a May meeting in which he had specifically mentioned the potential effect of the restructure on the CSR’s role, because the supervisor never produced the notes and was not called to give evidence during the Hearing.

The CSR noted that, being pregnant at the time, had she been properly informed of the impending redundancy, she “would have gone into damage control and would have either been looking for something else, in case that happened” or putting other plans in place. Instead, the Deputy President accepted the first the CSR knew of the impact that the restructure would have on her role was when, during an unscheduled meeting in June 2019, she was issued with a dismissal letter, told the redundancy would take immediate effect and advised she did not need to return to the workplace. The Deputy President subsequently observed that, “Advising an employee that they have been made redundant is not consultation (or at least not consultation within the meaning of the Award).”

Deputy President Boyce referenced the “sudden” nature of the dismissal saying it “compounded” the harshness of the decision, adding:

“That [the employer] has failed to properly consult with an employee who is more-so reliant on the requisite consultation obligations, than someone who is not pregnant is, in my opinion, the very definition of ‘unfair’.”

In highlighting the importance of the consultation process, the Deputy President explained that the onus falls “entirely on the employer to give information to the employee about how the restructure may affect them” prior to final decisions being made, adding that consultation must be a “meaningful exercise, not a perfunctory one”.

Deputy President Boyce chastised the employer for expecting the CSR to “infer” that her role might be made redundant as a result of the restructure and found the employer’s delivery of the redundancy/dismissal letter indicated a decision (regarding her role) had been reached before the CSR had a chance to consult.

Before concluding that the employer had a valid reason for dismissal (i.e. the redundancy was not a ‘sham’) but that the process was harsh for lacking “even a modicum of procedural fairness”, the Deputy President commented:

“The dialogue between an employer and an employee ought to afford a proper opportunity to discuss the impact that a relevant significant change will have on an employee, and the employer must consider (though not necessarily accept) the employee’s concerns and/or proposed alternatives. Above all, the outcome of the restructure must not be preordained at the time the consultation takes place.”

On determining that a proper consultation process would have lasted no more than three weeks, the Deputy President awarded the CSR compensation of $4,026 (gross), plus superannuation.

Tuchin v Mills Brands [2020] FWC 583 (7 February 2020)