Like so many businesses during the COVID-19 pandemic, the restaurant experienced a significant downturn in revenue. As a result of the strict Victorian lockdown, the business was forced to shut down on 9 July 2020.

On 11 July 2020, the business sent one employee a letter explaining that as a result of the closure, the employee’s role was no longer needed and the position was redundant. The employee was given 5 weeks’ notice, and her employment ended on 16 August 2020.

On 28 October 2020, the employee became aware the business was reopening, and had posted a job advertisement. The employee was also aware the business had hired new casual employees.

In light of this news, the employee considered her role was not redundant and filed an unfair dismissal application. Although the 21-day time frame had passed, the Commission granted an extension of time due to exceptional circumstances.

The decision

The Fair Work Commission (the “Commission”) first looked at whether the redundancy was genuine. The Commission accepted at the time of dismissal; the employee’s role was no longer required to be performed by anyone.

It was then considered whether the business had complied with its consultation obligations under the Hospitality Industry (General) Award 2020 (“Award”). The Award, like many, imposed notification and consultation requirements. Importantly, the Award required the business to inform employees of any significant changes which may affect them, discuss the changes, and give impacted employees a chance to respond before finalising a decision.

Given the business failed to engage in any discussion, it failed to satisfy the requirements of the Award. The consequence of the non-compliance was the redundancy was not genuine.

Learnings for business

Even though the redundancy was justified given the role was no longer required, this case highlights the importance of consultation. With many businesses losing the JobKeeper safety net and having to make difficult decisions about the viability of their business, redundancy may be a consideration.

If that is the case, it is vital the business takes time to assess it options and take advice to ensure it understands the redundancy process.

How we can help

It is important for businesses to follow a fair process when making a role redundant. Our experienced consultants at the Victorian Chamber can support business in representing and advocating for members to assist in negotiating in the Fair Work Commission proceedings.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222

[2021] FWC 700