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January 2021

Redundancy due to the COVID-19 pandemic found to be genuine

Redundancy due to the COVID-19 pandemic found to be genuine

The Case

Cross v Brisbane Broncos Rugby League Club Limited (2020)

The Brisbane Broncos Rugby League Club Limited (Brisbane Broncos) employed Mr Cross as an Assistant Coach under a maximum-term employment contract, from December 2018 to October 2020.

In March 2020, due to the financial impact of the COVID-19 pandemic, Mr Cross (along with 23 other employees) had his employment terminated for reasons of redundancy. However, in June 2020, the Brisbane Broncos engaged a new skills coach as a contractor to work 2 days per week under a short-term contract. Mr Cross commenced an unfair dismissal claim in the Fair Work Commission (FWC), arguing his redundancy was not genuine given this new engagement. Mr Cross also argued he should have been redeployed. Mr Cross filed the unfair dismissal claim 95 days outside the 21-day time limit.

The Verdict

The FWC held that:

  • the Brisbane Broncos could not afford to continue Mr Cross’ employment as a result of the financial impacts of the COVID-19 pandemic;
  • the new contractor role was a different position under a short-term contract, working only 2 days per week; and
  • the redundancy was genuine.

The FWC dismissed Mr Cross’ application.

While the FWC was not required to consider the out-of-time claim, it indicated that given the circumstances, the application most likely would have been accepted out of time.

The Lessons

In determining whether a redundancy is genuine, you must consider whether the role the employee holds will continue to exist. If there are other positions available, you will need to consider if the employee has the skills to perform those roles before considering employment termination. Any roles created soon after the redundancy may be scrutinised to determine if the earlier redundancy was genuine.

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