Genuine redundancy; how long to upskill?

The dismissal of an employee cannot be regarded as an unfair dismissal if it results from a genuine redundancy. There are a number of essential elements for a dismissal to constitute a genuine redundancy including that it would not have been reasonable I all the circumstances for the employer to redeploy the employee into another position; see sec 389 Fair Work Act 2009.

When determining whether it would have been reasonable in all the circumstance  to do so, there is some authority from  Fair Work Commission cases to the effect that this might also require an employer to keep an alternative position open while an employee upskills to meet the requirements of it. However there is a limit to how significant a burden this can be for an employer.

“In considering whether it would have been reasonable to hold the position open to allow Applicant to obtain Property Management Registration, Mr Edwards submitted this would have taken 12 months. In Wilson v Mackay Taxi Holdings Ltd, [2014] FWC 2425. Simpson C held that:

“[33] Even on the Applicants own best case there is a reasonable prospect that the Applicant will not hold the qualification attached to the new role for 6 months. I do not regard such a length of time as reasonable in all of the circumstances. Further while there was speculation that the Applicant may have been eligible for government funding to assist in meeting the costs of her undertaking the Certificate IV training, the fact is no such application had been made at the time of termination.

[35] For the reasons set out above I am satisfied it was not unreasonable for the Respondent to have advertised for the new position in order to engage an employee who held the qualification the position required instead of redeploying the Applicant into the Bookkeeper position.” 83

And see  Hallam v Sodexo Remote Sites Australia Pty Ltd (2017) FWC 4105 delivered 4 August 2017 per Spencer C