The Case

Alizadeh v Central Queensland University (2015)

Mr Alizadeh’s employment with Central Queensland University (CQU) was terminated on the grounds of redundancy. He commenced unfair dismissal proceedings, alleging that the redundancy was not genuine pursuant to section 389 of the Fair Work Act 2009 (Cth) (FW Act).

Mr Alizadeh alleged a position could have been created for him by removing casual teachers and giving him the hours of work the casual teachers would have otherwise worked.

The Verdict

Under the FW Act, for a redundancy to be genuine, the employer must:

• no longer require the person’s job to be performed by anyone because of changes in operational requirements;
• have complied with the consultation provisions in any relevant award or enterprise agreement; and
• not have been able to reasonably redeploy the employee elsewhere in the business or that of an associated entity.

The Fair Work Commission (FWC) held that CQU:

• had replaced Mr Alizadeh’s position with a higher-grade position, which required doctoral qualifications;
• had undertaken extensive consultation in accordance with its enterprise agreement, providing written notice of the proposed change, meeting with affected employees, meeting with the Joint Consultative Committee and obtaining feedback from affected employees;
• did not have to create a new position for Mr Alizadeh out of the casual hours being worked by casual teachers.
• Given these facts, the FWC held that the termination was a genuine redundancy and dismissed Mr Alizadeh’s unfair dismissal application.

The Lesson

When making employees’ positions redundant, you must ensure that:

• there is a business case to support the redundancy;
• you comply with all consultation provisions in any relevant award or enterprise agreement; and
• you have considered whether there are any alternative positions available within your business or that of an associated entity, which the employee is skilled and qualified to perform.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.