Unfair dismissal and redundancy

What follows is an extract from an unfair dismissal case in the Fair Work Commission the result of which turned upon whether the dismissal arose as a genuine redundancy.

“An employee’s job may still be genuinely made redundant when there are aspects of the

employee’s duties still being performed by other employees.5 The test is whether the job

previously performed by the employee has survived the restructure or downsizing, not whether

the duties have survived in some form.6

[12] The reference to “changes in the operational requirements of the employer’s enterprise”

in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to

improve efficiency, productivity, sales, revenue or some other aspect of performance. The

operational circumstances of a business which may give rise to a redundancy will reside in the

direct knowledge of the employer. The evidentiary onus is on the employer to provide direct

evidence about the nature of the employee’s job and why it is no longer required to be performed

as a result of changes in the operational requirements of the employer’s enterprise.

[13] If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues

such as unfair selection procedures for redundancy are not relevant, because they go to the

merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably.”


English v Tee Ink Pty Ltd T/A Charlie Holiday [2023] FWC 2328 delivered 12 September 2023 per Saunders DP