By Charles Power
If Fair Work Australia (FWA) is satisfied that you dismissed an employee for reasons of “genuine redundancy”, then the dismissed employee cannot claim unfair dismissal under the Fair Work Act.
In order to establish grounds of genuine redundancy, you must prove three things.
1. Firstly, you must prove that you dismissed the employee because you no longer required the person’s job to be performed by anyone due to changes in the operational requirements of your business.
Some examples of changes in operational requirements that might establish genuine redundancy are set out below.
- A machine is now available to do the job performed by the employee.
- You are restructuring your business to improve efficiency and you decide to redistribute the tasks done by a particular employee between several other employees.
- Your business is experiencing a downturn and therefore you only need 3 people to do a particular task or duty instead of 5. In this kind of scenario, the process for selecting which employees will be retrenched is irrelevant, so long as the criterion is lawful. For example, in the above scenario, you could choose the 2 employees to go on the basis of poor performance but not because one is pregnant and the other is on WorkCover.
2. Secondly, you must prove that you have complied with any obligation to consult with the employee about the redundancy. Such an obligation may arise under a modern award or enterprise agreement. You do not have to consult with the employee about the redundancy unless a modern award or enterprise agreement requires you to.
3. Finally, you must prove that it would not have been reasonable to redeploy the employee within your business or a related business.
Redeployment means offering the employee another job, even if they do not want to take it. This does not mean you have to create jobs – you only have to offer redeployment to jobs that are vacant.
If there are no suitable positions available for the employee (i.e. positions that match their qualifications or experience), then redeployment is not reasonable.
For more information on genuine redundancies, please see the Redundancy and Retrenchment chapter in your Employment Law Practical Handbook.