See Fair Work Act 2009 s.389(2)
A person's dismissal will not be a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to be redeployed within:
Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.[1]
In determining whether redeployment was reasonable a number of matters may be relevant, including:
An employer must consider whether it is reasonable to redeploy an employee to an associated entity.[4] The degree of managerial integration between the different entities is likely to be a relevant consideration.[5]
The Fair Work 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. There must be an appropriate evidentiary basis for such a finding.[6]
Evidence in relation to whether there was a job or a position or other work would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.[7]
The job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or within a reasonable period of retraining.[8]
Other considerations may be relevant such as:
If an employer has other positions available, even at a lower level, that the redundant employee has the skills to perform, the employer should not presume that the employee will refuse the position.[10]
An employee may well be prepared to consider a role with less responsibility and have no objection to the location of the role being different to the current one and accept less remuneration.[11] A finding, based on the evidence of the employee, may be open to the Commission that it would have been reasonable in all the circumstances for an employee to have been redeployed into a vacancy with lower income and less responsibility.[12]
Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other employees, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.[13]
Subjecting an employee to a competitive recruitment process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely made redundant.[14]
See Fair Work Act s.389(2)(b)
[1] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 26, [(2010) 199 IR 363].
[2] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 36, [(2014) 240 IR 130].
[3] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 28, [(2010) 199 IR 363].
[4] ibid., at para. 27.
[5] ibid.
[6] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 (Ross J, Booth DP, Bissett C, 29 January 2014) at para. 36, [(2014) 240 IR 130].
[7] ibid., at para. 37.
[8] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 34, [(2010) 199 IR 363].
[9] ibid.
[10] Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 (Ryan C, 8 August 2011) at paras 36, 40; confirmed on appeal in [2011] FWAFB 9137 (Giudice J, Hamilton DP, Roberts C, 23 December 2011) at para. 29.
[11] Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215 (Ryan C, 8 August 2011) at paras 39–43.
[12] ibid.
[13] Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 34, [(2010) 199 IR 363].
[14] Howarth v Ulan Coal Mines Limited [2010] FWA 4817 (Raffaelli C, 12 July 2010) at para. 41‒47; affirmed in Ulan Coal Mines Limited v Honeysett [2010] FWAFB 7578 (Giudice J, Hamberger SDP, Cambridge C, 12 November 2010) at para. 31, [(2010) 199 IR 363].