By Catherine Ngo Content writer, presenter and podcaster

A recent ruling by the Fair Work Commission (FWC) in an unfair dismissal case raises important considerations regarding redundancy procedures and the treatment of casual workers.

At the heart of the matter was a migrant worker who contested their dismissal, saying that it was not a legitimate redundancy. The worker cited the lack of appropriate consultation and the concurrent recruitment of a new employee as evidence of this.

Moreover, the worker raised concerns about the employer's apparent disregard for his vulnerability as a migrant with limited English proficiency.

 

Migrant worker's 'casual' status

In Keith, South Australia, a meat processing plant employed a casual factory hand, a Malaysian migrant with limited English proficiency. He had worked there for two years, putting in 37.5 hours per week and regularly doing overtime.

Despite the option to convert to permanent employment, the worker opted to remain a casual employee.

In June 2024, the worker was unexpectedly called to a meeting and informed that his position was being terminated due to cost-cutting measures. This news shocked him as he had no indication of any employment issues.

The employer, a cooperative in the meat and manufacturing sectors, cited an avian flu outbreak as the reason for immediate cost reductions. However, financial records showed that losses had occurred for months prior due to external market factors.

Decision to hire a new factory hand

In this case, the employer's decision to hire a new factory worker around dismissal time was a significant point of contention. During the termination meeting, when questioned about this, the employer briefly alluded to the worker's lack of a forklift license and comparatively limited skills compared to the new hire.

However, the Commission noted that the worker had been operating forklifts throughout his employment despite failing the license test twice. Notably, the employer had allowed this practice to continue for nine months after the second failed test.

Another crucial issue was a proper consultation process before the termination. The worker was not given an opportunity to discuss the decision or explore alternative options.

The termination meeting was also conducted in English, despite the worker's limited English. No interpreter or support person was offered during the meeting.

 

Was it a genuine redundancy?

The FWC determined that a factory worker's redundancy was not genuine as defined by the Fair Work Act. The employer's decision to add a new labour cost equivalent to one factory hand while proceeding with the worker's redundancy undermined their claim that headcount needed to be reduced urgently.

The FWC criticised the employer's lack of consultation with the worker, noting that they did not meet their consultation obligations. 

This decision showed casual employees have consultation rights regarding redundancy under the relevant award. Additionally, the abrupt termination meeting did not satisfy these obligations.

However, note that they must be meaningful consultations. Consultation is not merely providing perfunctory advice on upcoming events. It involves offering the individual or relevant parties a genuine chance to impact the decision-maker's final decision.

 

Employers' responsibilities towards vulnerable workers

A recent ruling highlighted employers' responsibility towards migrant workers. The ruling emphasised that employers must take steps to mitigate the vulnerabilities of migrant workers, especially those with limited English proficiency. In this case, the employer failed to take such steps, making the dismissal harsh and unfair.

In consideration of this, the Commission found that the dismissal was procedurally and substantively unfair and awarded a compensation of $20,000 plus superannuation.

The ruling also addressed the rights of casual employees, particularly regular and systematic casuals, to be treated fairly and challenge unfair dismissals.

Finally, the ruling recommended that policymakers consider assisting migrants with limited English to sit and complete the theory elements of local license qualifications in a language they can understand, notably when overseas licenses are not recognised. This would help reduce the vulnerabilities of migrant workers and ensure their fair treatment in the workplace.

Read the judgement here.