Redeployment

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Introduction

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:

the employer's enterprise, or
the enterprise of an associated entity of the employer.

Reasonable in the circumstances

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:

whether there exists a job or a position or other work to which the employee can be redeployed^[2]
the nature of any available position
the qualifications required to perform the job
the employee's skills, qualifications and experience, and
the location of the job in relation to the employee's residence and the remuneration (pay and entitlements) which is offered.^[3]

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]

Alternative job, position or work must be identified

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

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:

the location of the job, and
the level of remuneration.^[9]

Roles with lower income & less responsibility to be considered

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]

Open selection process may impact on whether redundancy is genuine

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]

Associated entity of the employer

See Fair Work Act s.389(2)(b)

Related information

What is an associated entity?

Case examples

Redeployment obligations met

Employee did not have requisite skills for alternative position

Patti v Vincent Chrisp & Partners P/L t/a Vincent Chrisp Architects [2012] FWA 8677 (Hamilton DP, 11 October 2012).

The employer made the employee's position redundant due to a downturn in business. The employer argued that the employee had been employed as a drafter. The employee argued that she performed the duties of a contract administrator and that she should have been redeployed in an available contract administrator position.

It was found that the employee's job was as a drafter and that her job was no longer required. The employee did not have the skills to work as a contract administrator and therefore redeployment was not reasonable.

Employee did not have requisite skills for alternative positions

Steele v Ennesty Energy Pty Ltd t/a Ennesty Energy [2012] FWA 4917 (Jones C, 21 June 2012).

The employee was employed as an Estimator/Bids Manager. The employee argued that the employer failed to consider redeploying her to either the position of Unit Manager or the position of Electrical Trades Assistant.

It was found that neither of these roles would have been suitable for the employee. The role of Unit Manager was not suitable due to the employee's lack of managerial experience. The Electrical Trades Assistant was not suitable because it involved a significant reduction in pay (around $37,000 per annum) and it involved a vastly different working environment. It was held that the lack of consideration for redeployment was not unreasonable in the circumstances.

Redeployment to management position not reasonable – alternative position refused by employee

Wilson v North Rockhampton Bowls Club Inc [2011] FWA 1928 (Simpson C, 31 March 2011).

The employee was the manager of the club before being made redundant. The employer created and advertised for a new management position. The employee was interviewed but was unsuccessful in obtaining the position. The employer offered the employee a position in the bar but the employee rejected the offer.

It was found that the new role was sufficiently different from the old role. It was found that the new role required such different skills that the employer was entitled to conduct a new interview process for the position. It was held that it was reasonable not to redeploy the employee to the new position.

Redeployment obligations NOT met

Redeployment options not fully explored by employer

Aldred v Hutchinson Pty Ltd [2012] FWA 8289 (Lewin C, 26 October 2012).

In considering redeployment, the employer limited its enquiries to the Victorian division of its enterprise. It was found that the words 'in the employer's enterprise or an associated entity' should be given the full and beneficial meaning. This means that the employer should not confine its consideration to a particular geographic zone or division of an employer's enterprise.

It was held that had broader enquiries been made, it was probable that redeployment opportunities would have been identified. It was therefore held that the employee's dismissal was not a case of genuine redundancy.

Employer failed to consider all ongoing vacancies

Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows [2012] FWA 3126 (Hampton C, 6 July 2012).

The employee was engaged to perform maintenance functions. In an attempt to save costs, the employer outsourced these functions to a labour hire agency. The employee argued that redeployment was not properly considered and he could have been redeployed within the same factory or elsewhere. The employer argued that at the time of dismissal, there were no positions reasonably available that the employee could be offered, or would accept.

It was found that the redeployment of the employee could have been accommodated at the time of dismissal. The employer failed to properly explore redeployment options as suitable vacancies existed at the time of dismissal. It was held that the dismissal was not a genuine redundancy.

Lack of consultation meant that redeployment was not properly considered

Harrison v Queensland University of Technology [2010] FWA 8789 (Asbury C, 12 November 2010).

The employee was dismissed when the units or subjects he taught at the university were discontinued. It was found that the employer failed to adequately consult with the employee regarding the redundancy and, in particular, the issue of redeployment.

The Commissioner found great difficulty in accepting that there could be any real consideration of options for redeployment in circumstances where there has been no consultation or discussion with the employee concerned before the decision to terminate the employee's employment was made. It was concluded that it was not a genuine redundancy.

Note: However, the dismissal was not harsh, unjust or unreasonable in all of the circumstances.

References

^[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].

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Last updated

01 July 2021

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