The fact that an employer may take into account the performance of an employee when determining which of a number of employees might lose his or her job to redundancy where that occurs in circumstances in which the employer has determined for economic reasons to reduce the headcount of employees does not render the defence of genuine redundancy unavailable to an employer.
“[26] The evidence of Ms Sun is that there were three employees performing essentially generic roles in the human resources department, that she needed to reduce that number by one, and that she then had to assess which of the three should be selected for redundancy. In this regard, she decided to assess the performance of each against key skill criteria. Ms Sun’s evidence then was that, of the three employees, Ms Tang’s performance was the weakest of the three, recording the lowest comparative score in 3 of 5 criteria. In her oral evidence, Ms Sun explained that Ms Tang’s communication skills and her English proficiency were not as strong as the other two candidates. In the absence of alternative evidence that would suggest these rankings were contrived or otherwise not be relied upon, I accept what Ms Sun has to say on the subject, with it following that Hisense was within its rights to declare that Ms Tang’s job was no longer required to be performed by anyone because of changes in its operational requirements.”
Tang v Hisense Australia Pty Ltd- [2024] FWC 2259 delivered 7 November 2024 per Wilson C