When an employer decides to render an employee’s position redundant and the affected employee sues for unfair dismissal in the Fair Work Commission o the basis that it was unfair that the particular employee’s job was unfair chosen instead of another, the commission is in a difficult position. On the one hand it is no business of the Commission to become involved in the running of the employer’s business by determining that the redundancy of one employee’s job was unfair or wrong.
On the other hand it is quite common for some employers to use the process of redundancies as a disguise for what might in fact be an objectively questionable and unfair choice of a particular job.
How does the Commission handle this dilemma? Here is the answer.
“[68] IAA submitted at the hearing that the challenges facing the business required it to reduce its administration costs. It drew a distinction between administrative employees and physiotherapists. While IAA accepted that it had one more employee now than at the time of Ms Greaves’s dismissal, it said this was the result of insourcing some of the physiotherapy work that would otherwise have been referred to external suppliers.
[69] It is not my role to stand in the shoes of IAA. It is also not necessary that the redundancy of an employee’s position be a last resort. I accept that a focus on raw employee numbers may be misleading. There can be a difference between positions which constitute an administrative cost for a business and those which generate revenue. I have no basis on which to criticise IAA for looking to reduce the first category and concentrate on the second.
[70] That said, I have two reservations. First, there is no evidence of any selection process that resulted in IAA identifying Ms Greaves’s position, as opposed to someone else’s, as redundant.
[71] Second, Ms Greaves submitted that the real reason for her dismissal was that she was perceived to be unproductive and for personal reasons was required to work from home. I find that submission to be largely speculative. Although there is some evidence that IAA held concerns with Ms Greaves’s productivity and working arrangements, it is insufficient for me to conclude that they were the reason for the dismissal. Mr Smith categorically denied the suggestion.
[72] Overall, and very much on balance, I am satisfied that there was a valid reason for the dismissal, that being the redundancy of Ms Greaves’s position.”
[68] IAA submitted at the hearing that the challenges facing the business required it to reduce its administration costs. It drew a distinction between administrative employees and physiotherapists. While IAA accepted that it had one more employee now than at the time of Ms Greaves’s dismissal, it said this was the result of insourcing some of the physiotherapy work that would otherwise have been referred to external suppliers.
[69] It is not my role to stand in the shoes of IAA. It is also not necessary that the redundancy of an employee’s position be a last resort. I accept that a focus on raw employee numbers may be misleading. There can be a difference between positions which constitute an administrative cost for a business and those which generate revenue. I have no basis on which to criticise IAA for looking to reduce the first category and concentrate on the second.
[70] That said, I have two reservations. First, there is no evidence of any selection process that resulted in IAA identifying Ms Greaves’s position, as opposed to someone else’s, as redundant.
[71] Second, Ms Greaves submitted that the real reason for her dismissal was that she was perceived to be unproductive and for personal reasons was required to work from home. I find that submission to be largely speculative. Although there is some evidence that IAA held concerns with Ms Greaves’s productivity and working arrangements, it is insufficient for me to conclude that they were the reason for the dismissal. Mr Smith categorically denied the suggestion.
[72] Overall, and very much on balance, I am satisfied that there was a valid reason for the dismissal, that being the redundancy of Ms Greaves’s position.”
Greaves v IAA Group Holdings Pty Ltd [2024] FWC 3523 delivered 20 December 2024 per Sloan C