Pregnant worker
News 27 February 2020

Pregnant worker not consulted about redundancy found to have been unfairly dismissed

The Fair Work Commission (the “Commission”) has found a pregnant worker was unfairly dismissed after the organisations redundancy process failed “to afford [her] even a modicum of procedural fairness.”

The Facts

The worker commenced employment in 2015 as a full-time customer service representative. In March 2019 a staff meeting was held to announce the organisation was “undergoing restructuring”. After this announcement the business held two further meetings with the worker prior to her position being made redundant.

In April 2019, a meeting with the worker was held to discuss the daily tasks and the role she performed. The worker understood this meeting was to “determine what processes she had been following” rather than to discuss the structural changes of the organisation. Whilst the organisation maintained they mentioned the restructure a number of times it wasn’t clear that the worker understood what the restructure meant for her position and future employment.

In May 2019, a further meeting was held between the worker and the organisation. The organisation contended they again reiterated to the worker they were undergoing a restructure. They also argued the worker was informed that her position may be made redundant but were unable to recall the exact words used or provide a copy of the meeting notes. The worker submitted it was her understanding that both meetings were to discuss recent management changes and there was “absolutely no talk” about her position being made redundant.

In June 2019, the worker was invited to a final meeting where she was advised her position had been made redundant. The worker claimed she had not been made aware of the purpose of the meeting, nor was she aware her job was at risk. The worker also believed she had been selected for redundancy due to pregnancy. The worker made an unfair dismissal claim to challenge both the reason for the redundancy and the process followed.

Decision

The Commission rejected the worker’s claim she had been selected for redundancy due to her pregnancy. Noting recent changes within the business, the Commission accepted there was a valid reason for the redundancy. However, the Commission was not satisfied the organisation had complied with the consultation requirements set out in the applicable Modern Award. In particular, the organisation failed to: notify the worker in writing of an upcoming discussion about changes that would significantly impact her position; provide the worker with an opportunity to discuss the proposed changes; and consider the worker’s response. The Commission confirmed consultation requirements are “legal obligations” and “must be complied with”. The Commission held the worker was unfairly dismissed and ordered the organisation to pay $4,026 plus superannuation by way of compensation.

Lessons for Businesses

Awards set out certain requirements which organisations must follow. As the Commission rightly stated, such requirements “should not be treated as a mere guideline, suggestion, or a “maybe””. It is important businesses are aware of their legal obligations before proceeding with decisions that will have significant effects on workers.

How we can assist

This case highlights the importance of knowing your legal obligations in relation to the redundancy process. Had this organisation called the Victorian Chamber of Commerce and Industry’s Workplace Relations Advice Line to understand the obligation to consult this case could have been avoided.

Complete Members have unlimited access to the Workplace Relations Advice Line. For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

MCC Contact

Get in touch with the Melbourne Chamber of Commerce

03 8662 5214

members@melbournechamber.org.au

 

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