Redundancy; what qualifies?

Here is an extract from a recent Fair Work Commission case which is  amongst other things a fine analysis of a genuine redundancy.

“A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 15 Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”.16 If there is no longer any function or duty to be performed by that person, their job becomes redundant.17

An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 18 The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.19 For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person’s job no longer existing.

The reference to “changes in the operational requirements of the employer’s enterprise” in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee’s job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer’s enterprise.

If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably. 20”

Hill v Fortis Products Pty Ltd T/A Colorguard Steel (2019) FWC 5567 delivered 9 August 2019 per Saunders DP