Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.
The requirement to implement redundancies usually results from an organisational restructure where an employee’s role is simply no longer required by their employer. This process is often objective in nature and does not require the evaluation of any variable, subjective criteria.
Redundancies of this strictly objective kind are generally considered to be “genuine redundancies” for the purposes of the Fair Work Act 2009 (Cth), subject to certain other criteria being fulfilled – including the exploration of redeployment options.
For example, a redundancy will not be considered to be a genuine redundancy if it would have been reasonable in all the circumstances for the employee to be redeployed within the enterprise or an associated entity. When assessing the reasonableness of redeployment, the courts have generally considered factors such as:
However, a recent decision of the Fair Work Commission (FWC) has highlighted the importance of organisational “fit” and workplace harmony in redundancy and redeployment situations.
In Velasquez v Cabrini Health Limited  FWC 5965, a social worker claimed that his dismissal was not a genuine redundancy because his employer did not redeploy him into suitable alternative employment that was available at the time.
The case for the employer was that the social worker had a problematic relationship history with the manager that would supervise the available position.
The employer was concerned about this history and sought to discuss this with the social worker at his interview for the available position. The employer provided the social worker with a copy of a letter he had written two years prior, in which he had stated that he believed the manager was behind a “witch hunt” mounted against him and had made it clear that he neither trusted nor respected her at all.
The employer asked the social worker whether his history with this manager would have any impact on his ability to work in that team. The social worker, taken aback by this, simply asserted that the matter had been resolved by their HR department two years ago.
The employer ultimately elected not to redeploy the social worker into the position for a number of reasons. Relevantly, the employer remained unconvinced that the social worker had moved on from the earlier relationship issues and was also not convinced that he no longer harboured any ill will towards the manager. The employer had therefore concluded that he would not be an appropriate “fit” for the team.
The FWC, whilst critical of the employer’s redeployment process, found that it would not have been reasonable for the social worker to be redeployed into that position.
The FWC stated that, in addition to the objective factors to be considered, it is also relevant for an employer to consider the likely impact of redeploying a person on the cohesiveness of the work group and its efficiency and productivity.
The social worker argued that a mere “personality clash” was not a sufficient excuse to refuse redeployment. However, the FWC disagreed and stated that that phrase “personality clash” severely understated the level of distrust and disrespect that the social worker had for the manager. The potential impact of his redeployment on the efficient and harmonious operation of the team and the probability that it would result in further workplace conflict meant that the redeployment would have been untenable in the circumstances.
Lessons for employers
Consideration of redeployment opportunities can be akin to the recruitment of a new employee. The employer should take a wholistic approach by considering whether the employee is aptly qualified and suited to the role and also whether the employee is an appropriate “fit” for the team or department into which they might be redeployed.
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.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
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