Not Considering Jobkeeper Meant Redundancy Was Not Genuine

Browne v MySharedServices

A recent decision of the Fair Work Commission (the Comimssion) has noted an employer’s lack of consideration for accessing the Jobkeeper scheme a contributor to the unfair dismissal of their employee.

Although the Jobkeeper scheme is still relatively new, there have now been a number of cases in the Commission regarding whether an employer is obliged to take Jobkeeper into consideration, including applying for it, prior to terminating an employees employment. As it stands, there is no positive obligation on employers to do so prior to termination of an employees employment.

In the recent case of Browne v MySharedServices an employer terminated an employee’s employment by reason of redundancy directly related to the COVID-19 pandemic.

The Commission considered whether the redundancy was a genuine redundancy in accordance with the relevant criteria pursuant to the Fair Work Act. The Commission found that:

  • the employer no longer required the employee’s role to be performed by anyone because of changes in the operational requirements of the business;
  • the employer failed to meet its consultation obligations under the relevant Modern Award to consult with the employee;
  • therefore, the termination was not a case of genuine redundancy as the consultation requirement was not met by the employer

Next, the Commission considered whether the employee had been unfairly dismissed. The Commission found that the employee was unfairly dismissed, and cited that one of the reasons for this decision was that the Jobkeeper scheme had been announced the week prior to the employee’s termination, and, that the employer’s lack of understanding as to the operation of Jobkeeper was not sufficient for them not to take it into consideration, as its purpose was to minimise job loss and redundancies.

Further, the Commission said that the employee may have offered to take leave, if consultation requirements had been met, until it was known how Jobkeeper would operate and if the employer would be eligible for it.

Take aways:

  • although this decision does not change the fact that there is no positive obligation on employers to take Jobkeeper into consideration, or apply for it, in an effort to minimise job loss and reduce redundancies, it does highlight, once again, the importance of consultation;
  • if proper consultation is not carried out with an employee, then this may mean that their dismissal is not a case of genuine redundancy and was harsh, unjust and/or unreasonable and therefore unfair

Need help with unfair dismissal? Contact Anderson Gray Lawyers.