Failure to consult about subjective selection makes redundancy unfair

As most employers will be aware, an employee dismissed due to genuine redundancy cannot claim unfair dismissal.  Under section 389 of the Fair Work Act 2009 (Cth), in determining whether a dismissal is a genuine redundancy the Fair Work Commission (FWC) is only required to consider whether:

  • the job is no longer required due to operational changes
  • there has been compliance with applicable consultation obligations and
  • reasonable attempts have been made to redeploy.

The methods used by the employer to select employees for redundancy are not taken into account.

However, a recent FWC decision serves as a reminder that selection criteria may come under scrutiny if the employer can’t meet the genuine redundancy threshold, underscoring the importance of complying with any consultation obligations.

In Kumar v Fuji Xerox Australia Pty Ltd1 the employer took steps to reduce its headcount as a result of a downturn in business. A selection matrix was used to determine who would be made redundant in the first tranche of redundancies which included the following criteria:

  • Values and behaviour.
  • Productivity.
  • Machines per day.
  • Timekeeping.
  • Workmanship.
  • Technical ability.

Each employee was given a score out of 3 for each of the criteria. Mr Kumar, who was an experienced technician with over 20 years’ experience, scored what would normally be considered a high score (16 out of 18). However, due to the narrow bandwidth of the scoring, this was a low score in comparison to his colleagues and his employment was terminated on grounds of redundancy.

The FWC found that Mr Kumar’s termination was not a genuine redundancy due to the employer’s failure to consult with Mr Kumar and his trade union in accordance with the applicable enterprise agreement. This included a failure to consult with the union on the selection criteria that would be used.

The FWC then went on to consider if the dismissal was harsh, unjust or unreasonable. The FWC considered that the scoring system for the skills matrix was flawed due to the narrow bandwidth of the scores and criticised the employer for not giving the employee an opportunity to challenge the selection criteria or the score he was given under it, particularly given the subjectivity of the matrix.

Although Mr Kumar’s dismissal was found to be unfair due to the lack of consultation2, the decision noted that the FWC should not stand in the shoes of the employer and categorise or pass judgement on the skills, experience and work ethic of individual members of a workforce.  This emphasises that, provided employers consult with employees about the basis of their selection for redundancy, the FWC will generally not look behind the employer’s reasons for the selection except in extreme cases of blatant unfairness.

1Kumar v Fuji Xerox Australia Pty Ltd [2018] FWC 3699
2The Respondent was ordered to pay Mr Kumar three weeks’ pay plus superannuation.


Emma Woolley

Partner & Head of Family Office Advisory

Karl Rozenbergs

Partner & Co-Lead, Health & Community

Ben Hamilton

Partner & Technology and Digital Economy Co-Lead

James Deady

Partner & Technology and Digital Economy Co-Lead

Eugene Chen

Partner & Head of China Practice

Oliver Jankowsky

Partner & Head of International Practice

John Bassilios

Partner & Fintech and Blockchain Lead

Matthew Curll

Partner & Insurance National Practice Leader

Melanie Smith

Director – Business Development, Marketing and Communications

Natalie Bannister

Partner & Commercial National Practice Leader

Nathan Kennedy

Partner, Head of Pro Bono & Community and ESG Co-Lead

William Moore

Partner & Head of Private Clients Advisory

Mark Dessi

Partner & Energy Leader

James Bull

Special Counsel & Frank Lab Co-Lead

Melanie James

People & Culture Manager

Jacqui Barrett

Partner & Head of US Desk

Lauren Parrant

Senior People & Culture Advisor

Melinda Woledge

Marketing & Communications Manager

Jasmine Koh

Senior Associate & Frank Lab Co-Lead

Alison Choy Flannigan

Partner & Co-Lead, Health & Community

Jordon Lee


Geoff Benson


Meg Lee

Partner & ESG Co-Lead

John Gray

Partner, Technology & Digital Economy Co-Lead and NSW Government Co-Lead

Harvey Duckett


Luke Denham


Billie Kerkez

Manager – Smarter Recovery Solutions

Jemima Whiteman


Bradley White


Sarah Khan


Audrey Leahy

Special Counsel & Head of Irish Desk

Nicole Tumiati

Partner & Retail & Consumer Goods Leader

Marie Mitilineos


Gloria Tam


Peter Jones

Senior Commercial Counsel

Eden Winokur

Partner & Head of Cyber

Jennifer Degotardi

Partner & NSW Government Co-Lead

Sheldon Fu


Claire Bourke


Chloe Taylor


Silvana Brcina


Daphne Schilizzi


Andrew Banks


Isabella Urso


Jessica Liu


Amelia Spratt


Lisa Ziegert

Director – Client Solutions

Luke Raams


Emma McDonald


Carl Ayers


Maddison Reznik

Senior Associate & Trade Marks Attorney

Rebecca Dodd


Gretel Burns


Ruby Hunt

Pro Bono & Community Co-ordinator

Rachel Bonic


Samantha Frost


Emma Bechaz


You might be also interested in...

Employment & Workplace Relations | 12 Aug 2018

Near enough can sometimes be good enough

Investigating misconduct complaints in the workplace is never easy for any employer, but the recent decision of the Fair Work Commission in Natoli v Envision Employment Services [2018] FWC 4034 should provide some comfort: an investigation need not be perfect for an employer to be able to rely upon it in dismissing an errant employee.

Employment & Workplace Relations | 21 Aug 2018

Enterprise agreement approvals – how long is seven days?

Recent Fair Work Commission decisions have confirmed that employers must meet strict technical requirements before enterprise agreements will be approved.