I like to move it (move it): Relocation & Redundancy

The issue of relocating employees from one location to another arises when a business is restructuring, when a site closes down, or when a business decides to move its operations. 

A recent decision of the Fair Work Commission (FWC) considered the issues of relocation, redundancy and unfair dismissal. 

In LW v Easy Payroll Perth Pty Ltd [2017] FWC 2469, Ms W was a part time payroll officer based in Perth.  In October 2016 Ms W was promoted to PEO HR Coordinator and was given a pay rise. 

In late October 2016, due to the loss of some substantial Perth based contracts, management decided it would be necessary to make the PEO HR Coordinator position redundant as the functions could be distributed to the full time payroll officers (who were not at “full capacity”) and other duties could be absorbed by the new full time Sydney based HR Manager.  The decision to have the HR Manager based in Sydney was to create efficiencies, streamline work, avoid double handling, avoid time zone issues and reduce miscommunication between staff. 

In a meeting in late October 2016 Ms W was advised that a new HR Manager position was being established in Sydney and her role would be made redundant. Management advised Ms W that if she wanted the HR Manager role to be in Perth she could propose that as an option, however, they confirmed that the role would need to be full time.  This meeting was a first stage consultation meeting.

A follow up email was sent confirming a position was available in Sydney on a full time basis.  Two further consultation meetings followed. 

Ms W made it quite clear that she was only interested in a casual or part time position in Perth and she did not want to relocate to Sydney for the HR position.

As a result, Ms W’s position was made redundant.

The issue before the FWC was whether the employer complied with its consultation obligations under the Clerks Private Sector Award 2010.  The FWC was satisfied that Ms W’s duties as a payroll officer and as a PEO HR Coordinator could be carried out by other full time staff.  The FWC also confirmed that the change in operational requirements was as the result of the loss of contracts.

The FWC considered the “genuine redundancy” exception under the Fair Work Act 2009 (Cth) with respect to genuine redundancy and unfair dismissal.    The FWC noted that at the time Ms W was dismissed the full time HR Manager role in Sydney was vacant.  Further, the FWC accepted the evidence that demonstrated that there were no casual positions or any position available involving maternity leave cover (as Ms W was pregnant and assumed someone would cover her position) and there were no other positions available to which Ms W could have been redeployed within the employer’s enterprise or any associated entity.

It was on this basis that the FWC determined that Ms W’s case was a genuine redundancy and therefore, she did not have an entitlement to access the unfair dismissal jurisdiction.

This decision of the FWC is a good reminder to employers that even in situations where an employee is likely not to accept the redeployment offer because of the location or employment status, employers must still meet their obligations with respect to consultation.  By following the consultation process and having evidence of all considerations readily available, employers will have their best chance of securing the genuine redundancy exemption from the unfair dismissal jurisdiction.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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