Fall from grace in redundancy case

10 November, 2017

A church’s process for implementing redundancy has fallen afoul of workplace laws after the Fair Work Commission found the employer’s efforts merely gave “lip-service to the concept of consultation”.

The employee started work at the parish in 2012 in various secretarial functions.

The parish began reviewing its administrative functions in September 2016 and in January 2017 the employee proceeded on leave due to a worker’s compensation claim.

While the employee was away the parish’s reverend absorbed the employee’s duties. Following a review of work processes, he determined that the employee’s role was no longer required.

On the same day he completed a review document, he sent a letter to the archdiocese human resources department stating his intention to start the redundancy process.

The department informed the reverend that he needed to consult with the employee first and they would set up a meeting with her.

Commissioner Ryan said it was “irresistible” to draw the conclusion that because both documents were dated on the same day, they were prepared together for the purpose of bolstering the contents of the letter.   

During the consultation meeting, the reverend was using a script prepared for him by the human resources department.

The Commissioner said the script merely gave “lip service to the concept of consultation” and that making the employee redundant was going to be implemented regardless of anything she may have said.

“The advice given … to (the reverend) led him into dealing with consultation as being nothing more than a mere formality to be gone through” he said. “It was perfunctory in the extreme.

“There was no sense of any genuine desire to seek the views of (the employee) before a firm decision was made. Rather, the decision was made and was to be implemented, unchanged.”

The Commissioner also said offers of redeployment were illusionary because the reverend merely pointed to job advertisements for other admin positions within the broader Catholic community, not within the organisation itself.

“The reality of this matter is that there were no possible redeployment opportunities and any suggestion to (the employee) otherwise was simply an exercise in misleading her and was also an exercise in trying to create an appearance of genuine consultation when there was no genuine consultation.”

Under the Clerks – Private Sector Award 2010, the reverend was required to properly consult with the employee.

The Commissioner said this had not been done and he deemed her dismissal unfair.

When considering the remedy, the Commissioner found the employee’s redundancy payout was fair and the work-related reasons behind her redundancy were sound.

He exercised his discretion to not grant a remedy.

This case serves as a reminder to employers executing redundancies that genuine consultation is critical in mitigating the risk of litigation. It is advisable to avoid the use of pre-prepared scripts and pre-drafted termination letters in such processes and to genuinely consider employee feedback.

Offers of alternative positions should only be made where they are available internally and for roles which the individual has the requisite skills, competence and training to successfully perform. For example, this may include positions that are at a lower level, lower pay rate, reduced hours or different location.

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