The definition of genuine redundancy in sec 389 of the Fair Work Act includes the following
(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”.
It is important to note that these words include a reference to “job” and not to “duties” or “functions” which of course a job consists of. Accordingly if an employer lawfully resolves to abolish a “job” by eliminating or re-distributing the “functions” of it to others, then the result is often that the job ceases to be and the person occupying that job may find his or her “job” ceases to exist and termination of employment may follow.
I often speak to clients who protest that his or her dismissal is and cannot be a legitimate redundancy because the functions of the job which he or she held before the employment was terminated were continuing to be performed and therefore his or her position had not become genuinely redundant. Of course this argument, whilst entirely understandable in many respects, overlooks the law, which is that a “job” can become entirely “redundant” notwithstanding functions of it are lawfully distributed elsewhere within the operations of the employer.
This is how the principle is often explained by the Fair Work Commission in unfair dismissal cases.
“[48] Fulton Hogan Construction submitted,55 and I accept, that:
a. in determining whether a redundancy is genuine it is relevant to identify whether an employee’s “job” is no longer required to be performed rather than their “duties”;56 and
b. the relevant test is whether the previous “job” survived, rather than a question as to whether the employee’s “duties” have survived in some form.57
[49] The explanatory memorandum for the Fair Work Act dealt with what is now s 389, and explicitly contemplates s 389(1)(a) applying where “the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five…”.58 It appears to indicate that the process for selecting individual employees for redundancy does not form part of the consideration for s 389(1)(a).59
[50] The interpretation of s 389 was considered by a Full Bench in Mackay Taxi Holdings Ltd v Wilson,60 applying Ulan Coal Mines Limited v Howarth and Others.61 Relevantly, the question is not whether discrete duties or tasks from Mr Kay’s job were subsequently performed by others. Downsizing can give rise to a finding under s 389(1)(a), as contemplated in the explanatory memorandum to the Fair Work Act. There are circumstances where tasks and duties of a particular employee continue to be performed but nevertheless their job no longer exists. That can include situations where the duties of someone’s job are broken up and distributed among other positions.
[51] Having considered the evidence, I am satisfied that the employer decided in October or November 2023 to reduce the number of Leading Hands on the project. It no longer required Mr Kay’s job to be performed by anyone because of changes in the operational requirements of its enterprise.”
Kay v Fulton Hogan Construction Pty Ltd [2025] FWC 330 delivered 6 February 2025 per Butler DP