{"id":86,"date":"2013-10-27T04:33:00","date_gmt":"2013-10-27T04:33:00","guid":{"rendered":"https:\/\/justrelations.com.au\/blog\/?p=86"},"modified":"2026-11-04T05:28:49","modified_gmt":"2026-11-04T05:28:49","slug":"case-study-when-failing-to-consult-doesnt-make-a-dismissal-unfair","status":"publish","type":"post","link":"https:\/\/justrelations.com.au\/blog\/2013\/10\/27\/case-study-when-failing-to-consult-doesnt-make-a-dismissal-unfair\/","title":{"rendered":"Case Study: When Failing to Consult Doesn’t Make a Dismissal Unfair"},"content":{"rendered":"\n

A decision by the Fair Work Commission ([2013] FWC 6838<\/em>) highlights a rare but significant scenario in employment law: an employer can technically breach its consultation duties during a redundancy, yet still successfully defend an unfair dismissal claim if the termination was ultimately unavoidable.<\/p>\n\n\n\n

The case involved a small restoration construction company and a veteran carpenter working on a major historic site project. While a prior jurisdictional hearing established that the worker was legally an employee rather than an independent contractor, his subsequent claim that his termination was unfair was ultimately dismissed.<\/p>\n\n\n\n

The Incident: A Project Coming to an End<\/p>\n\n\n\n

The worker had been engaged on a specific project that was winding down toward completion. As the project neared its end date, management began reducing the number of carpenters required on site.<\/p>\n\n\n\n

The worker argued that he was targeted and dismissed because he had previously raised complaints regarding unpaid superannuation and occupational health and safety (OHS) matters\u2014specifically, a refusal to sign blank toolbox meeting sheets. The employer maintained the termination was purely a genuine redundancy due to changing operational requirements.<\/p>\n\n\n\n

The Technical Breach: A Failure to Consult<\/p>\n\n\n\n

Under the governing Enterprise Agreement (EA), the employer was legally required to engage in a formal consultation process once a definitive decision was made to terminate an employee due to major workplace changes.<\/p>\n\n\n\n

The Commission noted that while management had spoken to the workforce in a general way about the project wrapping up, they failed to hold a specific consultation session with the worker once his individual redundancy was decided. Because the employer originally believed the worker was an independent subcontractor, they had not turned their mind to the EA’s requirements.<\/p>\n\n\n\n

Consequently, the Commission ruled that the dismissal was not a genuine redundancy<\/strong> due to this lack of compliance.<\/p>\n\n\n\n

Why the Unfair Dismissal Claim Was Dismissed<\/p>\n\n\n\n

Even though the employer lost the “genuine redundancy” shield, the Commission was still required to evaluate whether the dismissal was harsh, unjust, or unreasonable under standard criteria. The claim was ultimately dismissed due to several key factors:<\/p>\n\n\n\n