The Melbourne lockdowns have had an undeniable impact on businesses and seen a number of redundancies. In a recent Fair Work Commission decision the importance of consultation as required by a modern award was made clear.

The Respondent, a restaurant and bar, terminated the Applicant’s employment as a Chef in July 2020, effective 16 August 2020, as a result of the redundancy of her position. The termination was communicated to the Applicant by email, with her employer stating Melbourne’s second lockdown meant it was not possible to speak to her in person.  The termination letter also gave the Applicant the impression the Respondent would be closing its business.  However on 28 October 2020 the Applicant learnt the Respondent’s business was re-opening and on 10 November 2020 the Respondent posted a job ad for a chef for 35-40 hours per week.

This led the Applicant to file an unfair dismissal claim, well outside of the 21 day timeframe.  While the claim was filed out of time, the Fair Work Commission granted an extension of time for filing. Considering the evidence, it was found the Applicant’s position was bona fide redundant but not a genuine redundancy under the Fair Work Act 2009.  This led to a finding that the Respondent’s failure to consult as required in the modern award rendered the dismissal unfair.

The Commissioner hearing the case found if the modern award consultation had occurred, it would not have taken more than two weeks.  Accordingly, the Applicant was awarded two weeks’ pay as a remedy.

The lesson here is that consultation is important and should not be skipped.  It also highlights that in the current environment, employers need to ensure redundancies are genuine and be prepared for unfair dismissal claims to be made out of time, and accepted by the Fair Work Commission.

For anyone interested in the decision, the case is Michelle Sposito v Maori Chief Hotel [2021] FWC 700 (12 February 2021).  

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