In Australia, an employee cannot make a claim for unfair dismissal if the dismissal was a case of “genuine redundancy”. So, the relevant question is: what is the difference between a genuine and a non genuine redundancy ?
We have the answers below…
What is a genuine redundancy ?
A redundancy will be genuine if:
your employer no longer needs anybody to do your job because of operational changes in the business, and
there is no other job at that business (or at an associated entity) that you could be redeployed to, and
your employer has complied with consultation obligations imposed by an industrial agreement.
Lets look at these 3 requirements in closer detail…
1. When is a job no longer required ?
To properly answer this question we must start with a definition of “job”. The Fair Work Commission defines a “job” as “a collection of functions, duties and responsibilities”. Some examples of circumstances where a job is no longer required are:
new technology is available to do the job performed by the employee.
a downturn in trade has reduced the number of employees required.
the employer redistributes the duties performed by a particular person amongst other employees.
the employer contracts out a function of the business to a third party.
a business closure because of insolvency.
2. What are the Redeployment Obligations ?
The obligation on an employer to redeploy a person arises when “it would have been reasonable in all of the circusmtances”. In determining whether redeployment was reasonable the FWC will consider a number of matters, including :
whether a job or position exists.
the qualifications required to perform the job.
the employee’s skills, qualifications and experience
3. What are the Consultation Obligations ?
The obligation on an employer to consult about redundancy only arises when an industrial instrument applies to an employee, and that instrument contains requirements to consult about redundancy. If there is no industrial instrument that applies, then there is no legislative requirement to consult prior to making an employee redundant. Consultation must be genuine and allow the employee an opportunity to influence the decision maker.
What is not a genuine redundancy ?
A redundancy will not be genuine if:
your employer refills your position with another employee, or
you could have been redeployed to another job rather than being dismissed, or
your employer failed to consult with you before making you redundant.
Unfair Dismissal and Redundancy
If the redundancy is not genuine then you are eligible to make an unfair dismissal claim. If you have made an unfair dismissal claim, and your employer believes that your dismissal was a genuine redundancy, then they may make a jurisdictional objection to that application. The application will be dismissed if the Fair Work Commission determines that the redundancy was genuine. However, if the redundancy is not genuine, then the FWC must determine whether the dismissal was unfair.
If you are unsure whether your redundancy is genuine please contact us for free advice.