The Fair Work Act provides that the dismissal of an employee cannot be regarded as relevantly unfair if it was a “genuine redundancy”; see sub-sec 385(d). The Act also provides that the dismissal of an employee cannot be regarded as a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed in the employer’s enterprise or the enterprise of an associated entity of the employer.
The following extract from an unfair dismissal decision of the Fair Work Commission explains how that concept applies in practice.
“Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s 389(2))
[33]
The “employer’s enterprise” in s 389(2) is its “business, activity, project or undertaking”. This provides the scope of the inquiry under s 389.10
10 Helensburgh Coal at [35]
[2026] FWC 2922
8
[34]
“Redeployed” does not require there to be a vacant position.11 Chief Justice Gageler, together with Justices Gordon and Beech-Jones, explained the position as follows in Helensburgh Coal:12
“The word “redeploy” does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of “redeploy” – “to rearrange, reorganise, or transfer” – envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a “job”. The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, “redeployed” looks to whether there was work, or a demand for work, within the employer’s enterprise or an associated entity’s enterprise that could have been performed by the otherwise redundant employee.”
[35]
The hypothetical inquiry under s 389(2) of the Act asks what, at the time of the dismissal, could have been done by the employer to redeploy the employee to perform other work within the employer’s enterprise or the enterprise of an associated entity.13
[36]
As to reasonableness, the High Court in Helensburgh Coal observed that:14
“Reasonableness is an objective question to be determined by the FWC. The inquiry does not look to reasonableness only from the point of view of the employer, or only from the point of view of the employee (although they are relevant). It is an inquiry as to reasonableness in the context of the employer’s enterprise, with regard to the nature of that enterprise.”
[37]
The words “all the circumstances” are unmistakably broad. They can include:15
“… the attributes of the otherwise redundant employee, such as their skill set, experience, training and competencies. “[A]ll the circumstances” can also include those attributes of the employer’s enterprise that concern its workforce, such as: its policies, including appetite for risk; plans; processes; procedures; business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors; decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors; contract terms, such as whether they are “as needs” contracts and whether the contractors are on daily work orders or on some long-term fixed commitment; practical concerns, such as whether redeployment would require the employee to undergo further training; and anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired. These are “circumstances” of how an employer uses its workforce to operate its enterprise, or why it does so in that manner, which can, depending on the circumstances of the case, bear on whether it would have been reasonable to redeploy an employee within the enterprise. These circumstances are not directed at the size, scope or nature of the enterprise, which are fixed at the date of dismissal.”
11 Helensburgh Coal at [36]
12 At [36]
13 Helensburgh Coal at [36]
14 At [38]
15 Helensburgh Coal at [40]
[2026] FWC 2922
9
[38]
The language of s 389 does not prohibit asking whether an employer could have made changes to how it uses its workforce to operate its enterprise so as to create or make available a position for a person who would otherwise have been redundant.16
[39]
On the material before the Commission, I am not satisfied that it would not have been reasonable in all the circumstances for Ms Macnamara to have been redeployed within Little Unicorn’s enterprise or the enterprise of any of its associated entities. It is apparent from the material before the Commission that there was some work available for Ms Macnamara at The Little Unicorn Charlestown Pty Ltd, but the offer for Ms Macnamara to work at that centre was not made until three days after her dismissal. Apart from that offer, it is not known whether there was work, or a demand for work, within Little Unicorn’s enterprise or an associated entity’s enterprise that could have been performed by Ms Macnamara.
[40]
For the reasons given, Ms Macnamara’s dismissal by Little Unicorn was not a case of genuine redundancy within the meaning of s 389 of the Act.”
MacNamara v The Little Unicorn On Honeysuckle Pty Limited [2026] FWC 2922 delivered 3 August 2026 per Saunders DP