Where an employer terminates the employment of an employee as a genuine redundancy by meeting the statutory requirements of that expression, the employer will have a complete jurisdictional defence to an unfair dismissal claim. One of the elements which must be established by the employer though is that it was not reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. Here is the issue examined in an unfair dismissal case.
“3. Was it reasonable in all the circumstances for the person to be redeployed within,
(a) the employer’s enterprise; or (b) the enterprise of an associated entity of the
employer?
[22] In Helensburugh Coal Pty Ltd v Bartley [2021] FWCFB 2871 at [8], the Full Bench
reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt
Arthur Coal Pty Ltd [2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:
“The principles concerning the interpretation and application of s.389(2) have been
stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and
Further Education Commission t/a TAFE NSW v Pykett. Those principles were
summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by
reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the
dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed
person, the Commission must find, on the balance of probabilities, that there was a job
or a position or other work within the employer’s enterprise (or that of an associated
entity) to which it would have been reasonable in all the circumstances to redeploy the
dismissed employee.
(4) A number of matters are capable of being relevant in answering the question,
including the nature of any available position, the qualifications required to perform
the job, the employee’s skills, qualifications and experience, the location of the job and
the remuneration which it offered.”
[23] The Full Bench stated that the work to which an employee might be redeployed must,
ultimately, be work over which the employer has control.3
[24] The Respondent states the lack of managerial integration of the Respondent and Yancoal
is critical in understanding their limitations in redeploying the Applicant.
4 The Respondent
could not direct Yancoal to employ Mr Zhu. The Management Services Agreement between
the two entities Shandong and Yancoal demonstrated that neither had control and that Shandong
could not direct Yancoal to hire Mr Zhu.
[25] The Applicant contests that his role was still required by the Respondent. Some of his
responsibilities were transferred to Boyun Xu who is the Executive General Manager of
Yancoal Australia Limited.
[26] On balance, there was no longer a suitable role for the Applicant after Shandong had
entered into the Management Services Agreement with Yancoal regarding the operation of the
coal tenements. The operational requirements of the business had changed. There was no
suitable role in Brisbane considering the Applicant was the last remaining employee in that
[2023] FWC 1151
6
office. Furthermore, the role of a Chief Mining Engineer was not found to be suitable for the
Applicant, as his skills and experiences as a Project Manager were vastly different.
[27] I accept some of Mr Zhu’s remaining duties may have been given to Mr Boyun Xu.
However, this was a role that was now outside the employer’s enterprise, and although it may
be associated entity, it was outside Shandong’s control.
[28] I am satisfied that redeployment was not available in this instance and the employer had
fulfilled their obligations under s.389(2).
CONCLUSION
[29] I am satisfied that the dismissal of the Applicant was a genuine redundancy.”
Zhu v Shandong Energy Australia Pty Ltd [2023] FWC 1151 delivered 30 May 2023 per Lake DP