Genuine redundancy; what must be made out

To rely upon the jurisdictional defence of genuine redundancy, an employer defending an unfair dismissal case on that basis is required to demonstrate full, sincere, meaningful and genuine compliance with the statutory elements of the defence. Here is an excellent passage from a decision of the Fair Work Commission to that effect. In my view this is an extract from a very important case from a senior member of the Fair Work Commssion.

 

“389 Meaning of genuine redundancy

(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.”

[18] Genuine redundancy is a complete defence to an unfair dismissal application (per Ulan

Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 at [26], (2010) 199 IR 363).

[19] I am required to decide whether the dismissal was a case of genuine redundancy before

considering the merits of the application (per s.396).

[20] Section 389 requires a series of stepped findings: firstly, whether the Applicant’s job is

redundant; secondly whether the employer complied with any applicable consultation

obligations under a modern award or agreement and thirdly whether it would have been

reasonable to redeploy the Applicant in another role (see Pankratz v Regional Housing Limited

[2013] FWC 1259 at [6]-[9]).

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Consideration – Was the Applicant’s “job” made redundant because of operational

reasons?

[21] Section 389(1)(a) of the FW Act refers to an employer making a decision about an

employee’s “job”. A job involves “a collection of functions, duties and responsibilities

entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (per

Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 196 IR 32, [2010] FWAFB

3488 at [17] citing Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308).

[22] The Full Bench in Roy Morgan Research Ltd v K Baker [2013] FWCFB 8936 at [27]

expressed the view that an employer must provide evidence beyond “mere assertions [of a]

desire to do things differently” (at [8], [26]-[27]). At paragraph [27] the Full Bench said:

“As was noted by Deputy President Gooley, the Appellant is entitled to restructure its HR

team. However, if it wishes to contest an application for relief in respect of the

termination of an employee made redundant as a consequence on the basis that the

redundancy was due to the changed operational requirements of its enterprise (ss.385(d)

and 389(1) of the Act), it must produce evidence to the Commission to support such a

proposition, including evidence of the changed operational requirements.”

[Footnotes omitted]

[23] There must be an appropriate evidentiary basis for the Commission’s findings and the

relevant facts are usually peculiarly within the knowledge of the employer respondent rather

than the dismissed employee. Therefore, if an employer wishes to rely on the ‘genuine

redundancy’ exclusion then they would ordinarily be expected to adduce evidence that they no

longer required the dismissed employee’s job to be performed by anyone because of changes

in the operational requirements, that they met their consultation obligations and that it would

not have been reasonable in all the circumstances to redeploy the dismissed employee

(Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130,

[2014] FWCFB 714 at [36]).

[24] There are practical limits on the material that will need to be put by employers, as there

are limits in the other matters heard by the Commission, to avoid defeating the intent of the

genuine redundancy exclusion – in this regard an employer need only satisfy the Commission

on the balance of probabilities (Kieselbach and Amity Group Pty Ltd, PR973864 at [34]-[36]).

[25] The Full Bench in Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125 at [23]-[29],

(2014) 244 IR 252 at 261-263 explored the question of onus in some detail. The Full Bench

accepted that the notion of an onus of proof imports legal doctrines that should have no part in

the Commission’s procedural or decisional process (at [23]). The Full Bench noted that the

evidentiary onus, being “the burden of adducing or pointing to sufficient evidence to raise an

issue for determination by the court”, is borne by the party bearing the risk of non-persuasion

as to the fact in issue (at [25]-[29]).

[26] In this matter Trojan Wake Ski and Snow carried the risk of non-persuasion regarding

the elements of s.389.

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[27] In my view Trojan Wake Ski and Snow did not meet its evidentiary onus. The material

contained within Mr Newlan’s statement, reproduced in full in paragraph [11] above, does not

travel beyond mere assertions. His statement does not provide any sound evidentiary basis upon

which I could be satisfied that Ms Bowler’s position was made redundant because of changes

in operational requirements. Frankly, the statement looks to me like a computer-generated

collection of management buzzwords and contains almost nothing of substance relevant to these

proceedings.

[28] I am not satisfied on the evidence that Trojan Wake Ski and Snow made a decision that

it no longer required Ms Bowler’s job to be done by anyone because of changes in the

operational requirements of the employer’s enterprise.

[29] The employer’s genuine redundancy defence must fail.

Consideration – Did the Respondent comply with any applicable consultation

requirements?

[30] Trojan Wake Ski and Snow’s genuine redundancy defence also fails on the second limb

because, on the evidence provided, the employer did not comply with the consultation

obligations under clause 34 of the General Retail Industry Award 2020 (the Award).

[31] Clause 34 of the Award required the employer to take certain steps once it made a

definite decision to make major changes in organisation or structure that are likely to have

significant effects on employees. ‘Significant effects’ is defined in clause 34.5 to include

“termination of employment.”

[32] Ms Bowler’s original application squarely raised the consultation obligations under

clause 34 as in issue in her case. Trojan Wake Ski and Snow led no evidence at all in relation

to the process by which Ms Bowler was dismissed, let alone any evidence of consultation.

[33] From Ms Bowler’s evidence (reproduced at paragraph [15] above) it is clear that no

consultation took place at all with her in relation to the apparent decision by the employer to

make a position redundant.

[34] I am not satisfied that the employer complied with its obligations to consult about the

redundancy under the Award.

Consideration – Would it have been reasonable in all the circumstances to redeploy the

Applicant?

[35] Finally s.389 requires consideration of whether it would have been reasonable in all the

circumstances for Ms Bowler to be redeployed within Trojan Wake Ski and Snow’s enterprise

at the time that her job was made redundant.

[36] Neither party led any evidence about the existence of alternative positions to which Ms

Bowler could have been redeployed. In the circumstances I am not satisfied that it would have

been reasonable to redeploy Ms Bowler to another position.”

 

 

Bowler v Trojan Wake Ski and Snow Pty Ltd  [2023] FWC 2871 delivered 31 October 2023 per Easton DP