Unfair dismissal and redundancies

The Fair Work Commission has no right in an unfair dismissal case to interfere in the way in which a business conducts its business and in particular is not permitted to second guess an employer’s decision to reduce staff numbers, irrespective of the impact upon job security.

The Applicant’s own evidence does not identify a suitable available alternative role that he could be redeployed into, 30 other than to imply that another Level 5 employee (Kim Williams) should have been selected for redundancy as he could do her role.31 However, as was said in Boyan Bizoev v NODE Energy Service Pty Ltd T/A NODE Energy Service:32

“… in relation to changes in the operational requirements of an employer’s enterprise or business, such changes include reasons of economic, technological, structural or similar change, to all or any part/s of a business. In other words, an employer need not be losing money or running at a loss in order for it to be in a position to make changes in its operational requirements or its business. Once an employer is able to establish that it has bona fide reasons that it (as the employer) considers require changes to its business, it is not for an employee, or the Commission, to further inquire or engage in an analysis as to whether such changes were appropriate, logical, reasonable or necessary. Nor is it the role of the Commission to determine whether a relevant employee was or was not fairly or appropriately chosen, or otherwise selected, for redundancy. Just like the owner of a property can make changes or alterations to his or her house, that in his or her opinion are appropriate or required, an employer can also make changes to its operations or business, that in its opinion are appropriate or required.” 33

See Webster v Briars at Greenlees Pty Limited (2021) FWC 6133 28 October 2021 – Boyce DP