Fair work laws; redundancy concepts


The Fair Work Commission’s unfair dismissal benchbook makes the point that when determining whether a dismissal is a genuine redundancy (and therefore a jurisdictional defence to and unfair dismissal claim) it is necessary to closely scrutinize the differences between a job held by an employee before a termination of employment purportedly as a genuine redundancy and a new job created after the termination of an employee’s employment.


“The employee’s position as a Financial Controller was made redundant. The employer then hired a qualified accountant to a position titled Dealership Accountant. The duties identified in the job advertisement for the new position were identical to those of the position made redundant. The employer placed considerable emphasis on the requirement of a tertiary qualification in accounting; however the job advertisement did not specify this requirement. It was found that this was not a case of genuine redundancy.


McIlwraith v Toowong Mistubishi Pty Ltd (2012) FWA 9662 per Cribb C  delivered 22 November 2012