Unfair dismissal and genuine redundancy

 

It is routinely difficult to explain to a person whose employment is terminated on the grounds of redundancy that the employer’s decision about whether a job has become surplusage to requirements is a matter for it and may well be entirely valid irrespective of the employee’s views about the economic wisdom of the decision.

“4.1 Changes in operational requirements

[83] In Adams v Blamey Community Group, 135 the Full Bench of the Commission provided a comprehensive overview of the assessment to be undertaken under s 389(1)(a) when discerning whether the job was no longer required to be performed by anyone because of changes in operational requirements. Essentially, the Full Bench stated that was required were findings of fact on whether:

  1. a) the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone; and
  2. b) whether that decision was made because of changes in the operational requirements of the enterprise. 136

[84] Expanding upon the task under s 389(1)(a), the Full Bench cautioned that the assessment did not involve a merits review of the employer’s decision to make the person’s job redundant and ‘whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.’ 137

[85] The Applicant appeared to question the legitimacy of the redundancy of his position and understandably so. It occurred not long after the departure of a whole business unit, namely the Production Critical Services business unit and at a time where the Respondent was actively recruiting for a project engineer and a senior project engineer. Further, while other positions had been made redundant in the Respondent business, for example in the Workshop, the Applicant quite correctly pointed to the Workshop being unrelated to the Asset Preservation business unit.

[86] However, whilst there were job losses and recruitment occurring in other business units, this does not negate a finding of fact that within the Asset Preservation business unit, the Applicant’s job as project manager was in excess of the requirements of the Asset Preservation unit. Evidence has been provided that the Respondent had, in respect of the Asset Preservation unit, decided to adopt a selective approach to the projects it was seeking, and focus only on its two key clients. 138 The potential implications of this decision were highlighted when the Applicant asked of Mr Read in the town hall meeting via MS Teams:

If tomorrow, we will lose contract with BHP or Jadestone what will happen with the team currently working on this project? In the past the workforce would be redirected to small projects, but we are not accepting small projects anymore due to change in the strategy so what is the contingency plan? 139

[87] Mr Fromson gave evidence that the introduction of the new approach meant that there was no longer enough work to sustain all three project managers on the existing projects given that Jadestone and BHP were the remaining projects. 140 While there are aspects of Mr Fromson’s evidence that I am unpersuaded by, and I will detail those shortly, I am confident that his narrative is accurate given the collaborating evidence regarding the town hall meeting.

[88] Based on the evidence provided, I am satisfied that the Respondent was restructuring its business in respect of the Asset Preservation unit to improve efficiency, and that given the focus on its two clients, the tasks done by the Applicant were surplus to the business requirements such that they were no longer required to be performed by anyone.”

Kiezun v Innovative Asset Solutions Pty Ltd T/A IAS Group (2022) FWC 1831 delivered 23 August 2022 per Beaumont DP