What is a genuine redundancy for unfair dismissal cases

These passages from a recent unfair dismissal case determined by the Fair Work Commission deal with the legal elements of what constitutes a genuine redundancy.

“1. Did the Applicant’s employer no longer require the Applicant’s job to be performed

by anyone because of operational requirements of the employer’s enterprise?

[19] In considering a whether there has been a reorganisation or redistribution of duties, it is

pertinent to consider whether the employee has any duties left to discharge.3 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.4

[20] Hamberger SDP considered this issue in Kekeris v A. Hartrodt Australia Pty Ltd T/A

a.hartrodt5

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. In

Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench

considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals

(1995) 60 IR 304 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 newlycreated 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.

[21] ‘Operational requirements’ is a broad term which encompasses present performance of

the business, the state of the market in which the business operates, steps which may be taken

to improve efficiency by installing new processes, equipment, or skills, by arranging labour to

be used more productively or the application of good management to the business.

[22] The Respondent asserted that there had been a downturn in sales and revenue. The

Respondent was entitled to take steps to ensure the continued performance of his business and

identified they could redeploy the Applicant while ensuring that their business remains

operational.

[2023] FWC 1730

5

[23] The Applicant asserted that there was ongoing work in his existing role with a sales

role/national trade show execution in the Browns Plains location meaning that his role was not

redundant. However, this role was not the one which the Applicant had, and the Respondent

states the Applicant did not express interest in the other sales role, which required extensive

interstate travel. The Applicant’s role at the Generator’s place was not refilled indicating that

his duties were no longer required to be performed at that location.

[24] Therefore, the Applicant’s role was no longer required due to the Respondent’s changed

operational requirements.

  1. Did the Respondent comply with any obligations in a modern award or

enterprise agreement that applied to the employment to consult about

redundancy?

[25] The obligation on an employer to consult about redundancy only arises when a modern

award or enterprise agreement applies to an employee and that modern award or enterprise

agreement contains requirements to consult about redundancy. There is no legislative

requirement to consult about the redundancy before a decision is made to make an employee

redundant.

[26] The relevant award in this matter is the General Retail Industry Award 2020 which sets

out the requirements for consultation regarding major workplace changes under clause 34. The

Employer must have promptly raised the changes in the operation of their workforce or job

restructuring under clause 34.4 and clause 34.5. The Respondent was required to consult the

Applicant.

[27] The evidence provided by the Respondent demonstrated that this had been followed.

There had been two communications with the Applicant outlining the decision and reasons for

the reasons for redeployment. The Applicant did have conversations with a number of managers

although he disputes there was any consultation occurring. The Applicant was invited in each

of the letters to discuss the impact and the opportunity made available with the Respondent.

The Applicant did raise in one of the conversations with a manger that he might be interested

in casual work which the Respondent considered. The Respondent did not wish to lose the

Applicant’s skills and identified a practical solution.

[28] I am satisfied that the employer met their obligations regarding consultation under the

Award (GRIA). The two emails offering redeployment and the subsequent phone conversations

satisfy the requirements. I understand that the employee was on long service leave for the initial

period and the employer could have waited for his return to schedule a meeting to discuss the

impact and alternatives that the employee might have proffered. However, this is a smaller sized

business and the impetus for change meant that the Respondent was moving to restructure the

business and did not have a lot of time for an extensive consultation period.

  1. Was it reasonable in all the circumstances for the person to be redeployed within,

(a) the employer’s enterprise; or (b) the enterprise of an associated entity of the

employer?

[2023] FWC 1730

6

[29] In Helensburugh Coal Pty Ltd v Bartley [2021] FWCFB 2871 reaffirmed the rules of

redeployment set out in Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851 as succinctly

encapsulating the relevant considerations in relation to s.389(2)(a) of the FW Act as follows:

“The principles concerning the interpretation and application of s.389(2) have been

stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and

Further Education Commission t/a TAFE NSW v Pykett. Those principles were

summarised in Huang v Forgacs Engineering Pty Limited as follows:

(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by

reference to all of the relevant circumstances.

(2) The question is concerned with circumstances which pertained at the time of the

dismissal.

(3) In order to conclude that it would have been reasonable to redeploy the dismissed

person, the Commission must find, on the balance of probabilities, that there was a job

or a position or other work within the employer’s enterprise (or that of an associated

entity) to which it would have been reasonable in all the circumstances to redeploy the

dismissed employee.

(4) A number of matters are capable of being relevant in answering the question,

including the nature of any available position, the qualifications required to perform

the job, the employee’s skills, qualifications and experience, the location of the job and

the remuneration which it offered.”

[30] The available position that was offered to the Applicant was closer in location to his

residential address and was the same renumeration. The question is whether the Applicant had

the skills, qualifications and experience of the role. The Respondent states that the Applicant

was suitably qualified and experienced for the new role.

[31] The Applicant states the redeployment was unsuitable:

  1. as he had limited knowledge of products and experience in the role when he filled in at

the Mower Place business occasionally.

  1. the employees working at the Mower Place have extensive small engine knowledge.
  2. he was discriminated with his upcoming retirement.
  3. the Applicant had worked from the Company’s inception and that his knowledge and

experience was extensive in the original location rather than the redeployed role.

  1. the Applicant did not feel confident with the proposal of training as he had never

received formal training in his existing role and had learnt everything on the job.

[32] In considering the circumstances of whether the role was suitable redeployment, I

consider the below factors as suitable redeployment:

  1. The location of the new role was closer to the Applicant’s residence.
  2. The hours of work remain the same.
  3. The Applicant had extensive in sales. The redeployed role was a sales role.

[2023] FWC 1730

7

  1. There is no change in renumeration. The Applicant does not receive any

commissions or bonuses based on sales.

  1. The Applicant had worked in the Mower Place before (as a fill-in).

[33] It is acknowledged that the Applicant had concerns learning new products before his

retirement, which is why he had felt discriminated. However, the sales job at the Mower place

did not require him to quickly upskill or train.

[34] The Applicant had worked periodically at the Mower place when staff were not

available through illness or leave. He was not unfamiliar with the product lineup at the Mower

place and although he expressed some concerns regarding his limited technical and knowledge

skills, the Respondent was open to providing any further training the Applicant may need to

become fully proficient in the role. The Respondent made it clear that he valued the Applicant’s

skills and knowledge and wanted to retain him in the business.

[35] The Applicant raised concerns with potential safety issues. The Applicant asserted that

mowers had a higher risk profile than generators and he was concerned that he did not possess

the requisite knowledge to advise potential customers on the mower products. However, the

Respondent contended that there was excellent product training available, and he would have

been open to identifying any gaps in knowledge and assisting in finding ways to provide further

training opportunities to the Applicant. Furthermore, Applicant had concerns that the Mower

place was a seasonal business, and that his role was uncertain. It is to be noted that the Applicant

was offered a permanent part-time role and that he would have still had set hours despite any

seasonality of the business.

[36] The above factors indicate that the role was not a significant demotion, or a demotion

in general. I am satisfied that redeployment was available and provided to the Applicant in this

instance and the employer had fulfilled their obligations under s.389(2).

Was the dismissal harsh, unjust, or unreasonable?”

 

Williams v Genopea Resources Pty Ltd [2023] FWC 1730 delivered 24 July 2023 per Lake DP