If a dismissal is a case of genuine redundancy, the employee will not be able to proceed with an unfair dismissal claim under the Fair Work Act 2009 (Cth).

A dismissal is a case of genuine redundancy if:

• the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise;
• the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and
• it would not have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity.

The Full Federal Court, in Helensburgh Coal Pty Ltd v Bartley (2024), recently confirmed that for the first element to be satisfied, the dismissal need only be a consequence of changes in the operational requirements of an employer’s enterprise. The changes do not have to be reasonable.

In contrast, the third element requires the possibility of redeployment to be assessed according to what would have been reasonable. That necessarily envisages some analysis of the measures that an employer could have taken to redeploy an otherwise redundant employee. If there were measures that could have been taken and which, in all the circumstances, could reasonably have led to redeployment, then dismissal will not be a case of genuine redundancy.

In some circumstances, this may require an employer to:

• free up work for its employees by reducing its reliance upon external providers;
• delay the retrenchment until positions become available, for example, where it knows that other employees are soon to retire or that a contract with a third party for the performance of work is soon to expire; or
• retrain an employee so they could fill a vacant role that they would otherwise not be qualified to perform.

This Court ruling expands the redeployment criterion beyond simply considering whether there are positions available at the time for which the redundant employee is capable of performing.