It is a complete jurisdictional defence to an unfair dismissal claim that the termination of employment results from a “genuine redundancy”. There are several essential elements which constitute a genuine redundancy but it cannot apply if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or an enterprise of an associated entity; see sec 389, Fair Work Act 2009.
It is relatively common, particularly within large organizations such as government departments for the employer to offer voluntary redundancy as an option to employees and this is almost routine when the objective is simply to reduce staff numbers across the board. There are variations on this theme and sometimes the procedure includes opportunities for employees to swap jobs. So is an employer bound to offer this as an option when redundancies are being managed?
The answer is that the Fair Work Commission will not insist upon employers adopting job swapping as a requirement for them to demonstrate reasonable re-deployment, but if there is a scheme in place the employer will be required to apply it.
“We agree with Senior Deputy President Hamberger that there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. An employer who does not implement such a process will not automatically be found to have failed to meet the requirement in s.389(2) of the Act for the redundancy to be considered to be genuine.
The redeployment obligation is expressed in the context of “reasonable in all the circumstances”. Whether it would have been reasonable in all of the circumstances for an employer to allow employees whose positions are redundant to swap with other employees who wish to volunteer for redundancy, will depend on the facts in the particular case. In the present case:
• The respondent is a large business employing a significant number of employees who undertake the same role as those being made redundant;
• The number of employees performing the same or substantially the same role – train driving – means that allowing a swap would not place onerous training requirements on the respondent;
• In some cases there were potential swaps possibly available in depots reasonably proximate to the depots in which the appellants were working so that the respondent would not have been exposed to costs such as those associated with transferring employees;
• The respondent had previously allowed swaps in similar circumstances; and
• The respondent had suggested this as a possible option to mitigate the effects of redundancy in the round of redundancies which resulted in the dismissal of the appellants.
In these circumstances the possibility of swaps should have been considered, and the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2). We are not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position is redundant, by allowing that person to swap with another employee who wished to accept redundancy. Contrary to the submission of the respondent, we do not think that making available the possibility of transfers to Enfield and Moss Vale was sufficient compliance with the obligations imposed by s.389(2) of the Act. We are therefore not satisfied that the dismissal of the appellants was a case of genuine redundancy.
Skinner and others v Asciano Services Pty Ltd T/A Pacific National Bulk (2017) FWCFB delivered 25 January 2017 per Drake SDP, Asbury DP and Saunders C