An employee who has had his or her employment terminated on the grounds of genuine redundancy can nonetheless succeed in an unfair dismissal case 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 legal issue of “reasonableness” in this context is “discretionary” meaning that the view of one member of the Fair Work Commission may legitimately differ from another without either being regarded as wrong. In the following extract from a Fair Work Commission unfair dismissal case decision, it was held that it would have been reasonable in the circumstances for the employer to replace contractors with members of staff otherwise to have their employment rendered redundant thus preventing the employer from relying upon the genuine redundancy defence.
For the Respondent to be able to sustain its jurisdictional objection to the Applications, it must be able to satisfy that it has complied with the relevant provisions of the Agreement and the Act in relation to consultation and genuine redundancy.
I am satisfied and find that the Respondent has consulted with the Applicant and the CFMMEU. A total of 8 meetings were conducted between the parties. Whilst there is some disagreement as to whether agreement was reached in relation to a number of issues, it has been widely held that consultation does not require agreement between the parties in order to satisfy the obligation. The outstanding issue of the promised review of Mr Murdoch did not occur, but this issue could have been resolved by a telephone call or an exchange of emails.
I am not satisfied that the work being performed by Nexus or Mentser is specialist work. The unchallenged evidence of Mr Murdoch is that the work being performed by the contractors falls within the skills and competencies of the permanent workforce on the basis that they either still perform the work, previously performed the work for the Respondent or previously performed the work whilst working for a contractor performing this work. Mr Davey testified that there were now employees of the Respondent who could “volcanise the belt,” having previously worked for a contractor who undertook that task. As a result, the skills required to perform this specialised work were present within the skills and competencies of the permanent staff. I also accept the unchallenged evidence of Mr Davey that some of the work being performed by the Nexus employees was previously undertaken by employees of the Respondent and was basic black coal work.
I have adopted the test utilised by Ms O’Brien (see paragraph ). As a result, I find that the work performed by Mentser and Nexus to not be specialist work. The work is ongoing and sustaining. As a result, it would have been reasonable in all of the circumstances to redeploy the dismissed permanent employees into these roles. I find that the permanent employees have the necessary skills, qualifications and experience to undertake the functions being performed by these contractors.
I do not accept the submission of the Respondent that the mechanical fitters who took voluntary redundancy should not form part of my consideration. Voluntary redundancy is not an employment right. If there was work for the fitters to perform then, by definition, their roles were not redundant in accordance with section 389(1)(a) of the Act.
Whilst the Respondent appears blissfully unaware of the actual nationally accredited qualifications which are required to perform the full range of functions on the conveyor belts, the Respondent is equally unaware of the formal qualifications of the remaining Mentser employees. Providing evidence for 13 and 11 Mentser employees when only 8 are employed identifies a flawed evaluation process, especially when the General Manager of the Mine testified that she relied on Exhibit 4 (which contains the redacted names of the 13 Mentser employees) in making her decision not to redeploy any of the permanent employees to undertake this work.
I do not accept the submission that the Respondent would have been required to employ additional supervisors to supervise the conveyer belt work. It is plainly obvious that the Mentser employees are self-supervised, working in groups of 2. There is no reason why the permanent employees could not have followed the same supervision pattern or be supervised by an existing Deputy.
I am satisfied and find that it would have been reasonable for the Respondent to insource some, if not all, of the work that is being undertaken by both Nexus and Mentser and redeploy its dismissed employee into these roles. As a result, the Applicants’ termination does not satisfy section 389(2)(a) of the Act.
It is also appropriate to make comment in relation to an additional issue, which had no bearing on the determination of the matter. The selection matrix used by the Respondent in identifying the redundant employees is a matter for the industrial parties, however, it is unique for a matrix to allocate reliability or “attendance at work” a value of 40% where issues such as safety, technical competence and teamwork only received 20%. Such a scenario raises a concern in relation to the focus and priorities of the Respondent if attendance is as importance as safety and technical competence combined.
For the reasons stated above, apart from paragraph , the jurisdictional objection is dismissed.”
Bartley and others v Helensburgh Coal Pty Ltd  FWC 5756 delivered 24 December 2020per- Riordan C