Told her job was redundant while her replacement was being lined up

What happened

Mrs Gayle Tawha became the Coordinator of the Nullagine Community Resource Centre in March 2020. The centre is a small community organisation in the Pilbara run by a committee of management, and among other things it provided Centrelink services to the town. Mrs Tawha took over the Coordinator role from a man who had held it from 2018.

On 26 February 2021 she was told her employment was ending that same day. A letter from the centre said its operational requirements had changed "due to circumstances outside of our control" and that she had "become redundant". The minutes of a committee meeting earlier that month recorded that the centre could no longer support two employees and that her position was "redundant and unfunded". The centre said it had paid her one week's pay in place of notice.

The job that did not disappear

At the hearing, the previous Coordinator gave evidence for Mrs Tawha. He said that in December 2020, before she was dismissed, a member or members of the centre's committee told him the centre wanted to engage him again. He came back to the Coordinator role and said his duties were the same as hers.

He also told the Commission that after a week back he concluded he had been misled about Mrs Tawha's performance and the circumstances of her dismissal, and he resigned soon after. The centre's chair said the committee had decided it could not keep two employees because a source of funding had ended.

The claim and the legal test

Mrs Tawha, who represented herself, brought an unfair dismissal claim under s 29 of the Industrial Relations Act 1979 (WA). In the WA state system the ultimate question is whether a dismissal was "harsh, oppressive or unfair". Whether the job was genuinely redundant does not decide that question by itself, but when an employer relies on redundancy and the worker disputes it, the Commission will usually need to decide whether the redundancy was real.

Following the Full Bench in Sealanes (1985) Pty Ltd v Foley and Buktenica [2006] WAIRC 04110, Commissioner Walkington explained that a redundancy arises where an employer has more workers than the business needs, no longer wants a particular job done, or wants to combine jobs. The work does not have to vanish completely; it can be split among other people. The critical question is whether the person who held the job has any duties left to do after the reorganisation. The decision must also be genuine, not capricious or arbitrary.

Separately, s 41 of the Minimum Conditions of Employment Act 1993 (WA) requires an employer that has decided to make someone redundant to tell them as soon as reasonably practicable, and to discuss the likely effects and ways to avoid or reduce them. A failure to do this is a factor the Commission takes into account in deciding whether a dismissal was unfair.

What the Commission decided

The Commission found that the centre had started recruiting the former Coordinator to take on Mrs Tawha's position once her employment ended. It found the Coordinator role "continued to exist and had not been changed or modified in anyway", and that the centre did not abolish it but engaged another person to do it. The termination was not a genuine redundancy, so the dismissal was unfair.

That was enough to decide the case, but the Commissioner added that the process was also unfair and harsh. Mrs Tawha was given no chance to consider the reasons or any alternatives, she was not consulted as the Minimum Conditions of Employment Act requires, and the centre's representatives were "abrasive and harsh" when they told her. The Commissioner found the centre "contrived to use the rationale of a redundancy disingenuously", and said the dismissal would have been unfair even if the redundancy had been genuine.

How much was awarded

Going back to work at the centre was not practicable, so the Commission turned to compensation. Mrs Tawha had been earning $40.64 an hour for 37.5 hours a week on an ongoing contract, and there was no evidence her job would otherwise have ended. Compensation in the WAIRC is capped at six months' pay by s 23A(8) of the Act, and the Commission ordered the centre to pay her that maximum: $39,750.95, within 14 days.

In a separate decision given the same day, Tawha v Nullagine Community Resource Centre Association [2023] WAIRC 00098, the same Commissioner found that Mrs Tawha's son, who had worked at the centre as Assistant Coordinator, was also unfairly dismissed. He resigned after the centre cut his hours without his agreement, a change the Commission found breached his contract and went to its root.

What this means for you

If you are told your job is redundant, look at what happens to the work. If someone else is soon doing the same job, or your employer was already talking to a replacement, the redundancy may not be genuine. Messages, meeting minutes and evidence from the people involved, including whoever is now doing the job, can all matter, as they did here.

In the WA state system a genuine redundancy can still be unfair if you were not told and consulted as the law requires. WAIRC unfair dismissal claims must be lodged within 28 days after your employment ends, so it is worth getting advice early.