Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision by the Fair Work Commission, the answer is not necessarily. The decision highlights that there are certain circumstances where an employer may be safe from an unfair dismissal claim if it proceeds to termination without consulting the employee. However, these situations are highly exceptional and should be approached with caution.
The Fair Work Commission recently made a significant decision on out-of-hours conduct in finding that ALDI had had a valid reason to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function. The case emphasises that while employers have a responsibility to maintain appropriate standards of behaviour at work functions where alcohol is present, employees also have an obligation to act within reasonable limits.
The Fair Work Commission has found that an HR manager who was made redundant after accusing his managing director of having a meth addiction was not unfairly dismissed. Employers should be aware that, when considering whether a redundancy is genuine, the onus will rest with them to prove that the job is no longer required to be performed by anyone.