The Fair Work Commission, in an unfair dismissal case, will not review the fairness of a formula an employer may adopt when determining whether to undertake redundancies amongst its staff numbers.
“[12] A person cannot have been unfairly dismissed if the Commission is satisfied that the dismissal was a case of ‘genuine redundancy’ (s 385). This expression is defined in s 389 of the Act. A person’s dismissal was a case of genuine redundancy if the person’s employer ‘no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise’ (s 389(1)(a)); and the employer complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. Section 389(2) then states that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or that of an associated entity.
123] I accept the evidence of Ms Gattuso. It was detailed and credible. Ms Gattuso had direct knowledge of the relevant parts of the business, the composition of the workforce, and the operational requirements of the business. I find that the company’s operational requirements were such that it no longer needed its two growth development partner positions, including that of Ms Mickovska. The company no longer required Ms Mickovska’s job to be done by anyone. This was the result of the company’s review of its requirements in light of prevailing business circumstances. The functions of Ms Mickovska’s role were to be subsumed by Ms Pivik. The work of the other growth development partner was taken over by the regional manager. The fact that the work of Ms Mickovska’s position continued to be required does not cast any doubt on these conclusions. The question is not whether the work of the applicant is no longer required, but whether the employer no longer requires the job to be performed by anyone because of changes in its operational requirements.
[14] As I have said in other matters, at the time when the Commission is considering whether a dismissal was a case of genuine redundancy, it is not necessary to inquire into the fairness of the selection criteria or their application, because s 389 is not concerned with fairness; if a dismissal is found not to have been a genuine redundancy, the Commission may then proceed to consider whether the dismissal was unfair by reference to the considerations in s 387. On the other hand, s 389 does require a particular causation: to be a genuine redundancy, the employer must have no longer wanted the applicant’s job to be done by anyone because of changed operational requirements, and not because of some other reason, such as a desire to be rid of an employee. I note that in this matter there is no suggestion of some ulterior motive for Ms Mickovska’s dismissal having been at play.”
Mickovska v Ultraceuticals Pty Limited [2025] FWC 377 10 February 2025 per Colman DP