Unfair dismissal and genuine redundancy

It is very common for an employer, for whatever reason, although usually economic, to redistribute the functions of a job amongst other employees to reduce the head count of employees. In this situation, the organizational changes may render the job redundant notwithstanding that the functions of the job continue to be performed. Assuming that the employer performs the required consultation this may well constitute a genuine redundancy.

“In considering the question of whether an employer ‘no longer requires the person’s job

to be performed by anyone because of changes in the operational requirements of the

employer’s enterprise’, it is well established that the test can be met when job functions are

retained but are redistributed.

[20] In Ulan Coal Mines Limited v Henry Jon Howarth and others3

, the Full Bench said:

“[17] It is noted that the reference in the statutory expression is to a person’s ‘job’ no

longer being required to be performed. As Ryan J observed in Jones v Department of

Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties

and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a

particular employee’ (at p. 308). His Honour in that case considered a set of

circumstances where an employer might rearrange the organisational structure by

breaking up the collection of functions, duties and responsibilities attached to a single

position and distributing them among the holders of other positions, including

newly-created positions. In these circumstances, it was said that:

‘What is critical for the purpose of identifying a redundancy is whether the holder

of the former position has, after the re-organisation, any duties left to discharge.

If there is no longer any function or duty to be performed by that person, his or

her position becomes redundant…’ (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be

performed by somebody, he or she cannot be redundant (see Dibb v

Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in

the Explanatory Memorandum illustrate circumstances where tasks and duties

of a particular employee continue to be performed by other employees but

nevertheless the ‘job’ of that employee no longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP

considered whether a dismissal resulting from the restructure of a supervisory team was

a case of genuine redundancy. As a result of the restructure, four supervisory team leader

positions were replaced by three team leader positions. The Senior Deputy President

said:

‘When one looks at the specific duties performed by the applicant prior to her

termination they have much in common with those of two of the new positions

in the new structure. The test is not however whether the duties survive.

Paragraph 1548 of the explanatory memorandum makes clear that it can still be

a ‘genuine redundancy’ where the duties of a previous job persist but are

redistributed to other positions. The test is whether the job previously performed

by the applicant still exists.’”

[2023] FWC 1201

5

[21] It is also well accepted that the Commission should ‘not interfere with the right of an

employer to manage his own business unless he is seeking from the employees something which

is unjust or unreasonable’

4

. In other words, the Commission’s view as to whether the restructure

is a sound business decision is not a relevant factor in determining whether the redundancy is a

genuine redundancy.”

 

Short and Another v Immutable Pty Ltd [2023] FWC 1201 delivered 7 July 2023 per Dean DP