A Full Bench of Fair Work Australia (FWA) has confirmed that where a redundancy is found not to be genuine (because of a lack of consultation), the redundancy selection process will not then be considered in determining whether there was a valid reason for dismissal related to an employee’s capacity or conduct.

An employer consulted with two employees about potential redundancies while a third employee was on annual leave. The third employee was selected for redundancy based on his supervisor’s opinion that he was less efficient than the other two employees and because his ‘job picking cards’ allegedly supported that opinion. The employee filed an unfair dismissal application.

At the hearing FWA held that the:

  • redundancy was not genuine because the employer failed to consult with the employee; and
  • dismissal was unfair because the reason for the dismissal - being the selection criteria (which related to the employee’s capacity) - was not sound or defensible and, therefore, was not valid.

On appeal, the Full Bench agreed that the redundancy was not genuine because of the lack of consultation. However, it held that the reason for the dismissal was solely changes in the employer’s operational requirements, not the employee’s capacity. As the employee’s capacity was not an issue, it followed that the selection criteria used by the employer were not relevant.

However, even though there was a valid reason for the dismissal, the failure to consult was not reasonable. This meant the dismissal was, after all, unfair.

UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (14 August 2012)