I'll make you a (redeployment) offer that you cannot refuse!

In our previous blog article Objection! – Access to the Unfair Dismissal Jurisdiction we touched on the exemptions of unfair dismissal, one of which included genuine redundancy. 

If the Fair Work Commission (FWC) finds that an employee’s employment was terminated on the basis of a genuine redundancy, the employee does not have access to the unfair dismissal jurisdiction.  However, if the employee’s position was made redundant and the FWC finds that redundancy was not genuine, the employee will be entitled to access the jurisdiction.

The Law

Section 389 of the Fair Work Act 2009 (Cth) provides that an employee’s dismissal is a genuine redundancy if:

  • the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligations in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

An employee’s dismissal is not a case of genuine redundancy if there was a reasonable redeployment option within the employer’s enterprise or the enterprise of an associated entity of the employer.

What is redeployment and acceptable alternative employment?

Redeployment involves finding an alternative position within the employer’s business or associated entity.  However, simply finding any available position is not enough, the position must be suitable or acceptable alternative employment.

Should an employee lodge a claim for unfair dismissal on the basis that their employment was made redundant and was unfair, the FWC will need to determine that the redundancy was genuine and that there were no positions into which the employee could have reasonably been redeployed. 

If there were positions available, and the employee was not offered redeployment, the FWC will examine factors to determine whether redeployment should have taken place such as:

  • nature of the position;
  • the qualifications necessary to perform the role;
  • the employee’s skills, qualifications and experience;
  • the location of the job;
  • the remuneration which is offered;
  • hours of work; and
  • direct reports/reporting requirements.
     

In Dr PF v Peter MacCallum Cancer Institute [2016] FWC 4953, the employee (who was a scientist) applied for two positions during the redeployment period that were at a lower level than her current job and were outside the department she was working in.  The employer argued that she was not suitable for the roles given her narrow field of study and stated that she was overqualified for the roles. 

The FWC disagreed with the employer and determined that the employee should have been redeployed into one of the positions she had applied for as she would have easily transitioned into one of the positions.  This was on the basis of her 10 years service with the employer, her skills, qualifications and experience.

This decision also examined how active the employer was in trying to achieve redeployment.  The FWC pointed out that employers who are not active in sourcing redeployment options and simply terminating the employee’s employment on the basis of redundancy may fail to secure the genuine redundancy exemption.

Of course, the point of the legislative regime is to ask employers to do all they can to preserve employment for their existing employees when redundancies are required. 

The focus on consultation obligations and redeployment to secure the genuine redundancy exemption requires employers to closely examine their circumstances to identify redeployment opportunities. It may not always be immediately obvious that a redeployment opportunity exists and the opportunity may sit above or below the affected employee’s current role.

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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