Employer said, as a non-English speaker, he sought to express himself with the aid of ChatGPT, which may not have captured his true meaning
A supervisor challenged her dismissal after being told via email that her role was being made redundant due to operational restructuring.
The worker argued the employer failed to properly consult with her before making the final decision.
The employer maintained that the dismissal resulted from legitimate business pressures and claimed it had initiated a genuine consultation process, offering alternative roles before finalizing the redundancy.
Redundancy notice and business pressures
The worker was employed on 25 November 2020 as a housekeeping supervisor working at a serviced apartment complex, working 35 hours per week, managing other room attendants, rostering and ordering supplies.
On 26 May 2025, the owner issued what he described as a "formal redundancy notice" stating the employer had made the difficult decision to remove the housekeeping supervisor position effective 26 June 2025.
The letter offered the opportunity to discuss potential alternative roles, such as part-time or casual housekeeping, asking the worker to advise by 3 June if interested; otherwise, the employer would proceed with the removal of the position as planned.
The owner explained that since 2023, new hotels had opened, which negatively impacted his business. He lost key personnel, including a property manager, in 2024 and had been trying to manage the business himself.
He said the company was not profitable and he had explored ways to make it profitable, including taking on more work himself. He decided to make the housekeeping supervisor role redundant because the role could be absorbed by other people, including himself.
Email exchanges escalate
On 27 May 2025 the worker responded asking what hours could be guaranteed and what the "redundancy payout figure you would also be offering" if she chose not to take up those roles.
The owner responded advising that as a small business "redundancy pay does not apply in this case" and the roles were "operationally dependent and we are unable to guarantee a minimum number of hours".
The worker replied, suggesting another employee had been paid a redundancy payout, asking whether she was being "discriminated against", claiming she had not been consulted "as per the hospitality award" and would be "contacting Fair Work to submit my application".
On 28 May 2025 the worker emailed asserting there "should have been a formal consultation process with me prior to you making a final decision making my role redundant".
The owner responded saying "I have the right to make operational decisions, including removing a role that the business no longer requires", and while "this decision does not require employee agreement, I have always remained open to consultation regarding any possible redeployment or alternative arrangements".
The worker later responded that she was on sick leave and would not be prepared to discuss the matter while on sick leave. The worker was absent on sick leave from 28 May 2025, returned to work on 9 June 2025, worked her notice period and ceased work on 26 June 2025.
Role genuinely redundant but consultation failed
The Commissioner accepted the owner's evidence that his decision to remove the role was a change to operational requirements occasioned by a genuine effort to deal with business pressures. The Commissioner found that the employer no longer required the role to be performed by anyone because of changes in operational requirements.
However, for a dismissal to meet the definition of genuine redundancy, if there is an obligation to consult arising from an award, that obligation must be complied with. It was not in dispute the worker was covered by the Hospitality Industry (General) Award 2020 which requires consultation about major workplace change.
It is well established that for a discussion to constitute "consultation," it must occur before the final decision is made. The employer claimed its email sent on 26 May 2025 established a "genuine consultation process".
However, the employer itself conceded: "If the [worker] believes consultation could have 'changed the decision', the only possible change would have been to extend the transition period – giving her additional time to secure alternative employment or consider redeployment if she had come for the consultation. The consultation was genuine and intended to ease the transition, not to reverse the structural changes."
ChatGPT defence rejected
The proposition was put to the owner that the language he used indicated a finality to the decision that her role was redundant. In response, the owner initially submitted that as a non-English speaker, he had sought to express himself with the aid of "ChatGPT", which may not have captured his true meaning.
The Commissioner did not accept this submission. The owner repeatedly confirmed his decision to make the role redundant in his communications and evidence.
He was open to the worker continuing in a different role, but not the role that was made redundant.
The owner's decision to make the worker's role redundant was final at the time it was communicated to her. The "consultation," he said he initiated, could not have changed that decision.
The attempts to engage were entirely about discussing redeployment options. The owner should have indicated he was considering making her role redundant and asked for her feedback before making a final decision.
The employer did not comply with its obligation under the award to consult about the redundancy. As a result, the dismissal did not occur as a result of a genuine redundancy.
Redeployment offers and worker's response
The Commissioner observed that the offer to redeploy the worker into a casual role was genuine.
However, the owner conceded he never advised the worker how many hours were involved in the part-time role.
The employer's offer in respect to the part-time role was lacking crucial details. The worker escalated the tone of her correspondence in a manner that did not help her understand more about redeployment options.
Her references to "discrimination" and threats about "fairwork" proceedings were not conducive to a sensible discussion. The worker bore some considerable responsibility for these discussions breaking down.
Email notification criticised
While the reason for the dismissal was valid, the worker was told of the reason – redundancy – on 26 May 2025 after the decision had been made.
The Commissioner found the worker was not notified before the decision was made to terminate her employment.
This weighed in favour of a finding that the termination was unfair. It was most unfortunate that the owner chose to communicate the news via email in the evening of 26 May 2025, instead of speaking face-to-face with the worker earlier that day, when they were both at work.
The employer said it chose to "communicate in writing to ensure there was clear evidence of each step". The Commissioner did not consider that this submission assisted the employer. The worker had been an employee since November 2020 – for nearly five years. The worker and owner were at work together on 26 May 2025.
However, the owner did not take the opportunity to take the worker aside and explain his thinking. There is a difference between the ignorance which may result from a small business not having access to HR expertise, and a failure to adhere to basic standards of decency.
The Commissioner did not consider the size of the business or the absence of HR expertise as excusing the owner's failure to speak to the worker face to face about something as significant as the redundancy.
Unfair dismissal finding and compensation
The weight of considerations bore in favour of a finding that the dismissal was harsh, unjust and unreasonable, particularly due to the process the owner adopted to effect the termination, communicating the decision via email and not adhering to the consultation obligations in the award.
The Commissioner found the worker was unfairly dismissed. The worker did not seek reinstatement, and her role was redundant. The Commissioner found reinstatement was inappropriate.
An appropriate amount of time for a consultation process to occur, taking into account the nature and size of the business, was one week.
This may have meant the worker was provided with notice of termination from 4 June 2025, not 26 May 2025, and her notice period would have continued through to 2 July 2025. The consultation that should have happened may have caused the employment to continue for one week more than it did.
The worker obtained alternative employment commencing on 14 July 2025, a casual engagement earning about $450 per week. The worker's dismissal resulted in her loss of permanent employment. Her income had been reduced by more than half.
The amount was one week's pay, calculated at $1,162 less taxation as required by law, plus superannuation.
The Commissioner considered that this level of compensation was appropriate, having regard to all the circumstances of the case.
