Redeployment and redundancy

The dismissal of an employee will not evade an unfair dismissal case on the grounds of genuine redundancy where it would have been reasonable to redeploy the employee.

“Reasonable Redeployment

[39] The third element of s. 389 of the Act is the negatory provision contained in subsection 389 (2). This element renders what may have been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy if redeployment was reasonable in all the circumstances. Redeployment is contemplated to extend to any associated entities of the employer.

[40] The first and second affirmative elements extracted from subsection 389 (1) broadly involve an examination of the conduct of the employer, essentially what gave rise to the dismissal and whether there was compliance with any relevant consultation obligations. The third element concerning reasonable redeployment involves examination of both the employer’s actions and those of individual employees. The reasonableness or otherwise of any redeployment is a matter that would need to be assessed on a case by case basis, having regard for the approach to redeployment adopted by both the employer and the employee.

[41] Consequently, the consideration of the reasonable redeployment element of s. 389 of the Act has involved an examination of the actions which the employer undertook in the pursuit of redeployment for the applicant, and it has also involved careful scrutiny of the conduct and approach to redeployment demonstrated by the applicant.

[42] In this case, because the employer failed to comply with its obligations to consult as required by the Award, it is strictly unnecessary to further consider the question of the pursuit of reasonable redeployment. However, for completeness, the evidence has established that the employer took no steps whatsoever to properly consider redeployment of the applicant.

[43] Although the employer operates a small business, the prospect for some redeployment of the applicant would arise from proper discussion and consultation involving all of the five employees. In the absence of any consultation, no prospect involving the applicant and one or more of the other five employees job sharing or otherwise altering their work arrangements, so as to minimise the impact of the changes to the operational requirements of the employer’s business, was given even the remotest contemplation.

[44] The difficulties associated with restrictions arising from the Covid 19 pandemic cannot be used as attempted explanation or reason for failing to engage in proper consultation and exploration of potential redeployment. The applicant had been stood down without pay and there was no explanation or justification for the employer’s urgency to terminate her employment without some proper engagement and contemplation aimed at exploring measures to minimise or avoid the impact of the circumstances that had arisen.

[45] Therefore, in this instance the conduct of the employer did not involve proper consideration of reasonable redeployment opportunities, and thus the requirements of subsection 389 (2) of the Act, as confirmed in the Full Bench Decision in Ulan Coal Mines v Honeysett and Ors 1, have not been satisfied.

[46] In summary, in this instance the evidence has established that the employer did not comply with the consultation obligations of the Award, nor did it discharge the requirement for it to properly explore redeployment of the applicant. Consequently, the Commission is satisfied that the dismissal of the applicant on 7 April 2020, was not a case of genuine redundancy in satisfaction of the meaning of genuine redundancy provided in s. 389 of the Act.”

Bakermans v Hargo Pty Ltd T/A Citywest Gastroenterology (2020) FWC 6238 delivered 20 November 2020 per Cambridge C