The fair work redundancy test

This passage from an unfair dismssal case constitutes a good summary of the test to be applied when determining whether a job has survived a restrucutre or downsizing of an enterprise in a redundancy context.

“Consideration

[117] I turn now to a consideration of the criteria set out in s.389 of the Act. For Miss Francis’

dismissal to be a case of genuine redundancy, the Respondent must meet each of the criteria set

out in s.389 of the Act.

s.389(1)(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

[118] The test to be considered where there has been a reorganisation or redistribution of

duties is whether the employee has any duties left to discharge.2

[119] Where there is no longer any function or duty to be performed by an employee, his or

her position becomes redundant even where aspects of that employee’s duties are still being

performed by other employees.3

[120] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt4

considered this

point and established the test is whether the previous job has survived the restructure or

downsizing, rather than a question as to whether the duties have survived in some form. The

[2023] FWC 1896

21

Full Bench in Ulan Coal Mines Limited v Howarth and others5

considered and applied the

decision of Ryan J in Jones v Department of Energy and Minerals,

6

and said:

“[17] It is noted that the reference in the statutory expression is to a person’s ‘job’ no

longer being required to be performed. As Ryan J observed in Jones v Department of

Energy and Minerals (1995) 60 IR 304 a job involves ‘a collection of functions, duties

and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a

particular employee’ (at p. 308). His Honour in that case considered a set of

circumstances where an employer might rearrange the organisational structure by

breaking up the collection of functions, duties and responsibilities attached to a single

position and distributing them among the holders of other positions, including newlycreated positions. In these circumstances, it was said that:

‘What is critical for the purpose of identifying a redundancy is whether the holder

of the former position has, after the re-organisation, any duties left to discharge.

If there is no longer any function or duty to be performed by that person, his or

her position becomes redundant… (at p.308)’

This does not mean that if any aspect of the employee’s duties is still to be performed

by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation

(2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum

illustrate circumstances where tasks and duties of a particular employee continue to be

performed by other employees but nevertheless the ‘job’ of that employee no longer

exists.”

[121] I am satisfied that, albeit Mr Hopfner made a hasty decision to make Miss Francis’ role

redundant, as of 3 March 2023, the Respondent did not require the role to be performed by

anyone because of changes in the operational requirements of the Respondent’s enterprise. The

evidence is clear that the duties are absorbed into the functions of Mr Gador, Mr Cook and Ms

Campbell……………….”

 

Francis v Entegra (Aust) B I Pty Ltd T/A OBT Accounting and Tax Bribie Island [2023] FWC 1896 delivered 19 September 2023 per Hunt C