Unfair dismissal, operational issues and the Fair Work Act

For an employer to be able to succeed in establishing that the termination of an employee’s employment was a genuine redundancy (a complete jurisdictional defence to an unfair dismissal claim) the first criterion to be met is that the dismissal results from a determination by the employer that the employer no longer requires the persons’ job to be performed by anyone because of operational requirements of the employer’s enterprise (Fair Work Act, sec 389).

How does this play out in unfair dismissal cases. Here is an extract from a decision where the issue is explained.

s.389(1)(a) – 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

[80] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge.1 Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.2

[81] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt3 considered this point and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. The Full Bench in Ulan Coal Mines Limited v Howarth and others4 considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals5 and said:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)”

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

B N v RPS Energy Pty Ltd (2021) FWC 6364 delivered 16 November 2021 per Hunt C