A genuine redundancy rests on three legal tests, not one. The job must no longer be required, redeployment must be genuinely considered, and consultation must take place. Of the three, consultation is the one most often reduced to a formality – and it’s frequently where an otherwise sound redundancy starts to unravel.

Where a modern award or enterprise agreement applies, consultation isn’t optional. Employers must notify the affected employee of the proposed change, explain its likely impact, give a genuine opportunity to respond, and consider any alternatives raised – all before a final decision is made. That sequencing matters more than most businesses realise.

Notification isn’t consultation

The most common failure point isn’t a missing meeting. It’s timing. A manager who tells an employee their role is redundant and their employment is ending in the same conversation hasn’t consulted – they’ve notified. Consultation requires a live opportunity to influence the outcome, not a summary of a decision already made.

This distinction matters because the Fair Work Commission looks at sequencing closely when a redundancy is challenged. If the decision was effectively finalised before the employee had a chance to respond, the process fails the test regardless of how the conversation was framed.

What genuine consultation looks like

A two-step approach gives employers a defensible structure. The first meeting puts the employee on notice: the role may no longer be required, and here’s why. That’s followed by a gap of at least 24 hours, giving the employee time to consider what’s been said. The second meeting revisits the reasons for the proposed redundancy, considers redeployment, and – critically – hears the employee’s perspective before any outcome is delivered.

This isn’t extra process for its own sake. It’s what separates a redundancy that holds up from one that doesn’t. If an employee raises an alternative – reduced hours, a different structure, a role elsewhere in the business – that proposal needs to be considered on its merits and responded to, not simply acknowledged.

The bottom line

Consultation isn’t a step to get through before a redundancy is finalised. It’s one of the tests that determines whether the redundancy is genuine in the first place. Getting the sequencing and substance right – before any decision is locked in – is what gives a business the strongest position if that redundancy is ever scrutinised.

Want the full legal and practical picture on redundancy, including the case law reshaping redeployment obligations? Watch the on-demand webinar, We need to talk about redundancy, featuring Citation HR’s workplace relations team. Watch it here.