Redundancy laws explained; Part 3

The third circumstance which under the Fair Work Act will deny 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).

“How does the Fair Work Commission deal with this issue? Once again, as with the two previous posts I have published about this issue, the answer is well explained in an extract from the same case I have relied upon for the first two posts.

Would it have been reasonable in all the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise, or an associated entity of the Respondent?

[42] Sub-section 389(2) of the Act provides that a person’s dismissal cannot be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.

[43] The highest, binding interpretation of sub-s.389(2) remains that stated in Ulan Coal Mines Limited v A. Honeysett & Ors: 36

“[26] [Subsection 389(2)] must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[28] … [T]he question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include 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 which is offered”.

(emphasis added)

[44] The Respondent says this is a question addressed at the time of dismissal. It is only reasonable to redeploy if an alternative job existed for the Applicant. 37 The Respondent notes it is not contested that there was another position available for redeployment.

[45] The Applicant says that s.389(2) poses a question to be addressed at the time the position is made redundant, not merely at the time of dismissal. 38 I note that the Applicant has not directed me to any authority to make this proposition good.

[46] I accept that on the evidence there was no alternative role for the Applicant to have been redeployed into at the time of her dismissal. That being the case, I find that s.389(2) of the Act is of no application in this case.

[47] I would note that the parties put on lengthy, contrasting submissions and witness evidence regarding whether the Applicant was suitable to perform the Business Development Coordinator role, and whether she should have been redeployed into the role at the time it became available. I do not need to resolve those arguments to resolve the question posed by s.389(2) of the Act. The redundancy occurred approximately one calendar month after the Business Development Coordinator position was created and filled. It was not available at the time of dismissal.

[48] Again, I anticipate that the Applicant will be disappointed with this finding. Rightly or wrongly, she believes she could and should have been retained and redeployed into the Business Development Coordinator role instead of the Temporary Employee. Whether that is the case or not, however, is not an issue that requires resolution by the Commission in the facts and circumstances of this case.

Conclusion

[49] The Respondent has made good its case as to genuine redundancy. Accordingly, the Applicant’s dismissal is not one to which the Commission has the power to interfere with under the Act. Her Application is hereby dismissed. An order to that effect will follow the publication of this decision.”

Khoury v Vaughan Constructions Pty Ltd (2021) FWC 339 delivered 23 February 2021 per Boyce DP