Genuine redundancy and redeployment

One of the mandatory factors which disentitles an employer from relying upon the jurisdictional defence of “genuine redundancy” to an unfair dismissal claim is if it would have been 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; see sec 389, Fair Work Act 2009.

The following passage from a recent unfair dismissal case decided by the Fair Work Commission sets out what and what does not need to be established to meet the  defence.

“Consideration

[28] Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’, which is defined in s 389 as follows:

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been 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.

[29] Based on Ms Rudloff’s evidence, which I accept, I find that the Respondent no longer required Mr Mitchell’s job to be performed by anyone because of changes in its operational requirements. It was uncontentious that the Respondent had acquired COP and as a consequence sought to restructure its business in light of the amalgamation of two workforces. The amalgamation gave rise to an excess of employees for positions within the newly formed organisational structure. In the IS division the Respondent had identified 20 roles that were excess to requirements. 27

[30] In the section in which Mr Mitchell worked, only six out of the 11 employees were required, meaning that five roles were no longer required to be performed. 28 Albeit Mr Mitchell took issue with the figures being correct noting that they were one out. Notwithstanding, Mr Mitchell gave evidence that he was the only person in his team who was made redundant.29 However, during cross examination it was proposed that his statement was incorrect. Mr Mitchell qualified his answer to note that he was the only former Quadrant employee whose position had been made redundant.

[31] Insofar as consultation was concerned, both parties agreed that there was no such obligation given that an enterprise agreement did not apply to Mr Mitchell in his employment, and he was not covered by an award.

[32] When asked whether Mr Mitchell challenged his selection for redeployment compared to those employees that retained positions, Mr Mitchell’s representative confirmed that he did not. However, Mr Mitchell asserted that the Respondent had failed to properly consider the question of redeploying Mr Mitchell in its enterprise.

[33] In Ulan Coal Mines Ltd v Honeysett 30 the Full Bench observed that s 389(2) placed a limitation on an employer’s capacity to mount the defence that the dismissal was a case of a genuine redundancy. It expressed that the defence was not available, if, it would have been reasonable to redeploy the employee; this of course is a hypothetical question answerable only by reference to all the relevant circumstances.31

[34] Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal. 32 Further, in answering the question, consideration turns to 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 in relation to the employee’s residence, and the remuneration offered.33

[35] The consideration of the reasonableness of redeployment also involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, that is, her or his conduct and approach to the redeployment.

[36] Ms Rudloff gave evidence that the Respondent’s usual practice, when apparent that a position is to be made redundant, is to consider options for redeployment of the affected person. The ISLT, having decided on the new structure for the IS division, considered whether there was a vacant position that an employee facing redundancy could be considered for. Ms Rudloff said that in doing so, the ISLT considered each employee’s curriculum vitae and skills that they could transfer to a new role. Further, each IS Leader had a one-on-one conversation with each member of the IT team in order to discuss their goals, experience and career aspirations. 34

[37] It was evident from Mr Mitchell’s account that he was aggrieved that the significance of the one-on-one conversation was not explained to him at the time it was held. In this respect he asserted that there were two phases to the Respondent’s redeployment phase. The first, a genuine consideration of his suitability for redeployment in respect to positions which Mr Mitchell was qualified for. The second, which commenced on 19 November 2020, was the official redeployment period. At this time, said Mr Mitchell, the Respondent knew that the vacant jobs were unsuitable for him.

[38] Concerning the first phase, Mr Mitchell pressed that insofar as the Respondent’s consideration of him for redeployment was concerned, he had no input or discussion about the positions he was considered for in the new structure. While not urging a submission that consultation was compulsory, Mr Mitchell maintained that it was not good enough that he was not involved in the first phase of the Respondent’s redeployment process and as such it had occurred in a vacuum.

[39] Relevant to my consideration is whether there were was a suitable job or position to which Mr Mitchell could have been redeployed and then whether such redeployment was reasonable in the circumstances. The Respondent provided a spreadsheet of positions which were available at the time of dismissal. Evidence was given that information on the spreadsheet had been extracted from the Respondent’s computer system and that at the relevant time all vacant positions were on the computer system. Further, Mr Mitchell had similarly been provided with a list of available internal roles across the Respondent and its associated entities.

[40] It is open to find that none of the positions identified were suitable for Mr Mitchell and that Mr Mitchell had made the same assessment. At the start of the redeployment process Mr Mitchell was contacted by the Respondent’s recruiter and was asked to participate in the redeployment process by engaging with the recruiter. Mr Mitchell confirmed that he did not respond to the recruiter’s email and did not apply for any of the vacant positions. When it was suggested to Mr Mitchell that none of the available roles were suitable in light of his qualifications, skills and experiences, Mr Mitchell expressed that this was correct.

[41] Generally, s 389(2) does not require an employer to redeploy an employee to any vacant position. 35 An essential part of the concept of redeployment under s 389 is that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. The job, however, must be suitable and the employee should have the skills and competence required to perform it either immediately or with a reasonable period of retraining.36 Having considered the evidence, I accept the evidence of the Respondent that there were no suitable positions in which to place Mr Mitchell.

[42] Mr Mitchell asked the question of Ms Rudloff in cross examination as to whether he was provided the opportunity to provide input into the specific positions that were created or remained as consequence of the IS division restructure. Specifically, whether the positions in the new organisational structure were shared with him. The evidence given was that those positions were not shared with him albeit he was considered for them. Section 398(2) of the Act, however, does not place upon the Respondent a positive obligation to share with an affected employee the positions established or left remaining after a restructure of the organisation.

[43] Mr Mitchell appeared upset that he had not been selected for retention in the Respondent’s new organisational structure and grappled with the feedback that his performance had somehow contributed to the decision to redeploy him. To this extent, submissions were made that Mr Mitchell had never been alerted or otherwise warned that his performance was an issue.

[44] The Respondent submitted that it did not consider Mr Mitchell was underperforming, however when his performance was compared to that of his counterparts he did not rate as highly. Furthermore, Ms Rudloff gave evidence that performance was only one factor that was considered in the decision concerning which employees to retain and which to redeploy. She detailed in her evidence that selection decisions were based on multiple criteria. Those criteria are set out at paragraph [13] of this decision. While Mr Mitchell confirmed that he did not challenge the ‘Selection Matrix’ 37 or use of the same, essentially, he did appear to be challenging the process by which he was chosen for redeployment.

[45] It is accepted that the terms of s 389 suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. 38 Submissions advanced on behalf of Mr Mitchell were couched in terms of a consideration of ‘reasonableness’, such that – logically, reasonableness could not be said to occur in a vacuum. While the submission that the assessment of reasonableness could not be said to occur in a vacuum, Mr Mitchell spoke of the ‘first phase’ of the redeployment process and not having been afforded the opportunity to provide input into same. The ‘first phase’ saw the Respondent settle its organisational structure and identify those employees who were excess to requirements. To identify the employees who were excess to requirements, selection decisions were made based on set criteria.39 I am of the view that fundamentally Mr Mitchell was disputing his selection.

[46] It is open on the evidence to find that the Respondent had restructured its business and as result positions in the IS division had been made redundant. The Respondent had turned its mind to whether there were any suitable and available roles into which Mr Mitchell could have been redeployed. There is appropriate evidence which shows that there were no such available roles or work based on Mr Mitchell’s skills, experience and qualifications. While the Respondent took issue with Mr Mitchell’s lack of engagement in the redeployment process, largely his lassitude arose because of his cognisance that there were no suitable positions available.

[47] I therefore find, on the balance of probabilities, that there was no job or a position or other work within the Respondent’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy Mr Mitchell. Further, it would not have been reasonable in all the circumstances for Mr Mitchell to have been redeployed into a vacant position for which he had shown no interest.”

Mitchell v Santos Ltd T/A Santos (2021) FWC 2157 delivered 29 April 2021 per Beaumont DP