In a recent case* the effect of which is critical to the practical application of the ability of employers to escape potential unfair dismissal liability by categorizing a termination of employment as a “genuine redundancy, the High Court unanimously held that the Fair Work Act requires the Fair Work Commission, when dealing with a contest as to whether a dismissal was relevantly unfair and not capable of constituting a “genuine redundancy”, to inquire into whether an employer could have reasonably made changes to how it manages its operations, including the use of contractors. In doing so the Court concluded that the Commission was entitled to consider whether the employer could have redeployed the affected employees to perform work which at the material time was being performed by contractors, and employees of contractors.
In doing so the High Court has made it coherently arguable that the concept of redeployment in sec 389(2) of the Act does not limit the analysis of whether it would have been reasonable to redeploy an employee elsewhere within its operations to whether or not a vacant position within the operations of the employer existed at the time of dismissal. This of course gives rise in cases dealing with whether it would have been reasonable to redeploy an employee to an argument that a termination of employment was relevantly unfair, and not capable of constituting a genuine redundancy, because a job then being undertaken by an employee of a contractor should have been offered to an existing employee of the employer instead of being regarded as a redundancy.
Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29 6 August 2025