Failure to consider JobKeeper gives rise to Unfair Dismissal

Employers considering staff redundancies should take note of a recent decision from the FWC

In the recent Fair Work Commission (the "FWC") decision of Mathew Browne v
MySharedServices [2020] FWC 4445, a failure to consider JobKeeper was a relevant factor in finding
that a retrenched employee had been "unfairly dismissed".

Background
MySharedServices ("MSS") terminated the employment of Mathew Browne by reason of
redundancy on 7 April 2020 after being heavily affected by the COVID-19 shut-downs. This occurred
without consultation as required by the Clerks – Private Award 2010. At the time of the dismissal,
the JobKeeper subsidy had only recently been announced by the Federal Government on 30 March
2020. Mr Browne subsequently filed an application for unfair dismissal.

Findings
The FWC found that the termination of Mathew Browne was not a "genuine redundancy" pursuant
to section 389 of the Fair Work Act 2009 (Cth) because MSS had failed to consult in accordance with
the Award. The FWC rejected the argument that consultation obligations had "surely" changed by
reason of COVID-19.

While the FWC acknowledged that MSS may not have understood the operation of the JobKeeper
subsidies at the time of dismissal, it noted that the same applied to many other employers who
managed to maintain employees until such time as the JobKeeper payment came through.

While the FWC acknowledged that the circumstances looked "bleak" for MSS at the end of March
2020, the FWC found that the decision of MSS to employ 2 further sales consultants in May 2020
indicated that there may well have been opportunities for Mr Browne to be redeployed.

The FWC concluded that the dismissal was harsh and unjust and that Mr Browne had been unfairly
dismissed.

Takeaways
• It is important that employers are aware and comply with "consultation obligations" arising
under a Modern Award or Enterprise Agreement to minimise the risk of a successful unfair
dismissal claim following the dismissal of an employee by reason of redundancy.
• Employers should be mindful that a failure to consider JobKeeper may be a relevant factor in
determining whether a dismissal is unfair. This is particularly so in the case of dismissals found
not to be "genuine redundancies" pursuant to s 389 of the Fair Work Act 2009 (Cth).
• A copy of the decision is available here.