Employer ordered to pay compensation to pregnant employee for failure to consult.

Redundancy consultation obligations often seem to be overlooked or inadequately undertaken. Following on from our recent article, in another Fair Work Commission (FWC) decision an employer has been ordered to pay compensation to a pregnant employee after making her redundant. Whilst the FWC found that the employer was justified in making the employee’s role redundant, it held that the employer failed to consult with the employee about her redundancy and ordered the employer to pay her compensation for unfair dismissal.

The employee was a full-time practice manager at a dental clinic. The employer ran the dental practice and decided that the business no longer required a full-time practice manager, based on factors such as the salary for the position and also that the duties could be performed by other employees. The duties of the employee’s position were redistributed to other employees and her role was made redundant.

The employee was asked to attend a meeting, which she thought was for the purpose of a performance appraisal. However in the meeting the employee was advised that her position had been made redundant but that she was going to be redeployed into another role. The employer then subsequently withdrew the offer of redeployment and whilst the employee was on sick leave sent her a letter advising that her employment had ceased.

The employee argued that the redundancy was not genuine and that she had been terminated because she was pregnant.

The FWC found that the evidence showed the employee’s role was genuinely redundant and that the duties of her role had been broken down and redistributed to other employees.

However, the FWC held that the employer had failed to comply with the consultation obligations contained in the applicable Modern Award, in that the employer’s actions did not actually constitute consultation, including with respect to the redeployment issue.

For these reasons, the FWC held the redundancy was not genuine and that the employee was unfairly dismissed. The employer was ordered to pay the employee compensation in the amount of $5,630 (gross), plus superannuation.

The decision highlights that it is important that employers carefully comply with any consultation obligations set out in applicable Modern Awards when it comes to redundancies.

https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8097.htm