Redundancy, redeployment and unfair dismissal cases

Cases

Redundancy, redeployment and unfair dismissal cases

Employers cannot rely on the ‘genuine redundancy’ provisions in the Fair Work Act to avoid a claim of unfair dismissal, unless it would have been unreasonable for the employee to be redeployed within an employer’s business or in an associated entity. These cases explore this requirement.

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Employers cannot rely on the ‘genuine redundancy’ provisions in the Fair Work Act to avoid a claim of unfair dismissal, unless it would have been unreasonable for the employee to be redeployed within an employer’s business or in an associated entity. These cases explore this requirement.

Employer did not redeploy to more junior position
 
There is no requirement in s389(2) of the Fair Work Act to redeploy an employee into any position. In this case there was a profound difference between the nature of available work and the work the applicant performed. It was reasonable for the employer to assume a more junior position was not appropriate.
 
K v Queensland Tissue Products P/L [2014] FWC 2500 (17 April 2014)


No severance pay as new role was comparable
 
The employee submitted her new role was not comparable to her old one as was required by the company’s enterprise agreement and therefore she was entitled to a severance payment.
 
Whether a role is comparable and reasonable is an objective test. The Commission held the new redeployed role was directly comparable to the applicant’s previous role. A reasonable person in the applicant’s position would not have refused redeployment so she was not entitled to a severance payment.
 
G v Australia and New Zealand Banking Group Limited [2014] FWC 1095 (13 February 2014)


Onus is on employer to explore possibilities for redeployment

The employer argued the applicant-employee should have raised the matter of another possible position. The Commission did not accept this proposition as the applicant was not in a position to know about other roles. The onus was on the employer to explore possibilities for redeployment.

R v Chromagen Management Services [2014] FWC 2356 (9 April 2014)


Employer not obliged to disclose details of financial affairs
 
Section 389 does not require an employer to prove the reason behind its decision to declare a position redundant was a sound business decision.
 
The employer is not obliged to disclose details of its financial affairs to establish an unsustainable level of loss or unacceptably low profit.
 
All that was required was the employer no longer required the applicant’s job to be performed by anyone.
 
S v Tim Davies Landscaping P/L [2014] FWC 2489 (14 April 2014)


Employer could not pay – argument accepted
 
The employer sought an order to reduce the amount of redundancy pay to the employee. No redeployment was possible. The employer was not a limited liability company but a partnership. The Commission was satisfied its debt, assets and low income meant it could not borrow to pay the redundancy entitlement. The employee also accepted this conclusion.
 
The exceptional circumstances meant the Commission granted the application in part and the redundancy payment was reduced to three weeks’ pay.

C v G [2014] FWC 1103 (13 February 2014)
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