In an earlier article we reported on the Fair Work Australia decision of Iryna Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 which involved an unfair dismissal application, and in particular, the need to consult in redundancy situations (see: Redundancy Consultation).

This decision was appealed, and the Full Bench has handed down its decision today (Jenny Craig Weight Loss Centres Pty Ltd v I Margolina [2011] FWFB 9137). The appeal raised two questions: whether the respondent was a person protected from unfair dismissal and, if so, whether the application must nevertheless fail because the dismissal was a genuine redundancy.

Whilst the Full Bench agreed with the appellant’s argument that the Commissioner at first instance erred in finding the respondent was a person protected from unfair dismissal on the basis of being covered by a modern award, it nevertheless found that the applicant was protected on the basis that her income was less than the high income threshold.

In relation to the second question, the Full Bench upheld Commissioner Ryan’s finding that there was not a genuine redundancy within the meaning of s389 of the Fair Work Act 2009.

The Appellant argued it would not have been reasonable to redeploy the Respondent, and therefore it was a genuine redundancy pursuant to s389(2). After reviewing the evidence, and in particular the cross examination of the Respondent, the Full Bench concluded:

The decision reiterates the importance of identifying available positions and consultation with employees whose original position is made redundant - even if it is considered that the employee is unlikely to accept any alternative available position(s).

 Contacts:  Justin Zeeman & Allan Walsh