Is it unfair dismissal? Employer argues there was genuine redundancy
The Fair Work Commission (FWC) examined whether a head chef's dismissal was harsh, unjust or unreasonable after the employer abolished the position from its organisational structure due to business and financial challenges.
The employer objected to the application on the basis that it said the dismissal was a result of a genuine redundancy and was consistent with the Small Business Fair Dismissal Code.
The applicant contested these objections and sought a remedy from the Commission in respect of unfair dismissal. The applicant was engaged by the employer as its head chef for two years and nine months until his employment was terminated.
The FWC conducted a hearing to determine those objections and dismissed them for reasons delivered on the transcript.
The objection that the dismissal was consistent with the code and thus cannot be an unfair dismissal was dismissed on the basis that, as is well established, the code is not applicable to a dismissal arising from redundancy.
The objection that the dismissal was a genuine redundancy was dismissed because while the FWC determined that the employer made an operational decision to remove the position of head chef due to business challenges, the employer did not consult with the applicant in accordance with its obligation to do so pursuant to the award.
The FWC noted it was therefore necessary to...
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