Unfair dismissal; redundancy decisions by employers

“The Explanatory Memorandum to the Fair Work Bill 2008 states the following in respect of s.389 at Item 1553:

“Clause 389 – Meaning of genuine redundancy

  1. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”

(Underlining added)

In the Full Bench decision of UES (In’t) Pty Ltd v Leevan Harvey 3 (UES) the majority stated:

“[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.1

The majority decision in UES was applied by the Full Bench in Ventyx Pty Ltd v Mr Paul Murray 4

In Tebikenibeu Low v Menzies Property Services Pty Ltd5 Hatcher VP opined:

“[16] It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. 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.”

Having regard to the above authorities I will consider the matters in s.389.”

Haberfehiner v GVK NSW RIO Pty Limited T/A GVK Group (2019) FWC 3434 delivered 17 May 2019 per  Bull DP