Redundant Employees, is there justice in the FWC

Being made redundant is the dismissal / termination of choice by employers. This is particularly with small business (less than 15 employees) that are exempt from paying redundancy. Redundant Employees, is there justice in the FWC, is an important question. Lets explore the question and get the answers.

What does the Fair work Act say

“Redundant Employees, is there justice in the FWC’. This is what it appears when you find out you cannot pursue your claim in the Fair work Commission. An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy. A dismissal is a case of genuine redundancy when the employer no longer requires the person’s job to be performed by anyone.

If its due to changes in the operational requirements of the employer’s enterprise. Also the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

When is a Dismissal is NOT a case of genuine redundancy?

A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within the employer’s enterprise. Or the enterprise of an associated entity of the employer. If an employer believes that an employee’s dismissal was a genuine redundancy. When or if the employee makes an application for an unfair dismissal remedy the employer may make a jurisdictional objection to that application.

If an employer can prove that the requirements of s.389 of the Fair Work Act 2009 (Cth) have been met, the Fair work Commission will have no jurisdiction to hear the unfair dismissal claim. However, if the requirements of s.389 of the Fair Work Act 2009 (Cth) have not been met, the Commission must determine if the dismissal was unfair.

Has your employer met their obligations under s.389 of the Fair Work Act 2009 (Cth)?

First Element

In redundant employees in determining whether your redundancy is genuine, the first question you must ask yourself is whether or not your job is still available. If the answer is no, then it is arguable that because your role no longer exists. Or is no longer required by the Company, your redundancy is likely to be genuine. If your answer is yes and your role has been replaced due to a reshuffle of staff or the Company’s need to downsize. It then depends on the other factors under s.389 of the Fair Work Act 2009 (Cth), your redundancy may not be genuine.

Second Element

The second element that the Company must satisfy in order for a redundancy to be deemed genuine. Is the obligation to consult with employees about the redundancy. There is an obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee. That modern award or enterprise agreement contains requirements (which they often do) to consult about redundancy.

Third Element

The third element that the Company must satisfy is whether 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. If the Company does not consult with an employee, then it is arguably that the reasonable steps have not been taken to redeploy the employee. As no discussion took place and so no alternatives were assessed.

Consultation what’s this mean

If the Company did consult, then the Fair Work Commission will look at the effectiveness of this consultation Whether the Company took into account various factors when assessing possible redeployment.

Process for selecting employees for redundancy is not relevant

The process for selecting employees for redundancy is not relevant to whether the dismissal was a genuine redundancy. Or whether there was a valid reason for dismissal based on capacity. It is within the Company’s rights to run their business as they please. So it is at their discretion who they chose to make redundant.

However, if an employer has chosen to make you redundant for a prohibited reason. Such as because you’re pregnant, illness, sex this is an unlawful selection. Therefore the process may be relevant to a claim under the general protections provisions of the Fair Work Act. Or under various state or federal anti-discrimination laws.

Is there an obligation to consult?

In determining whether the Company consulted with an employee, we must first establish whether there is an obligation to consult. These obligations only arise when a modern award or enterprise agreement contains this requirement.

A modern award applies to an employee when it covers the employee is in operation. There is no provision in the Fair Work Act 2009 (Cth) which provides or has the effect that the modern award does not apply. A modern award does NOT apply to an employee at a time when the employee is a high income employee. As a result, modern award consultation obligations do not apply to high income employees. However, this does not affect eligibility for an unfair dismissal remedy.

An enterprise agreement applies to an employee when it: covers the employee is in operation. There is no provision in the Fair Work Act 2009 (Cth) which provides or has the effect that the modern award does not apply.

Redundant Employees, is there justice in the FWC

If your not award covered, no there is no obligation to consult. Unfortunately, if there is no modern award or enterprise agreement that applies, there is no legislative requirement to consult. Before a decision is made to make an employee redundant.

Employer does not comply

If an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy, the redundancy may not be deemed genuine. There is no absolute obligation on an employer to consult about the redundancy. However it requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.^[7]

Potential redundant employees failure to consult makes it non genuine

If an employer was obliged to consult and fails to do so, the Commission may find this is not a genuine redundancy. However, the Fair Work Commission will need to assess the s.389 factors as a whole. Any one failure under the three parts will not automatically render the redundancy not genuine. This is because in circumstances where ‘consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change’. The failure to consult may not be so strongly considered by the Commission in determining whether it was an unfair dismissal.

Consideration of Redeployment

Whether redeployment of potential redundant employees is considered reasonable will depend on the circumstances that exist at the time of the dismissal.^[10] 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.

The nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience. Also the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered.^[12] An employer must consider whether it is reasonable to redeploy an employee to an associated entity. The degree of managerial integration between the different entities is likely to be a relevant consideration.

Balance of probabilities

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.

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.

Alternative role

The alternative job must be suitable to the potential redundant employees in the sense that the employee should have the skills and competence required to perform. it must be to the required standard either immediately or within a reasonable period of retraining.^[17] When assessing suitability, the FWC will also look at additional factors such as the location of the job and the level of remuneration. 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.

Consideration of the role

An employee may well be prepared to consider a role. Although it has less responsibility and have no objection to the location of the role being different to the current one and accept less remuneration. 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.

Advertising your role

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. In turn require the employee to compete with other employees. It might subsequently be found that the resulting dismissal is not a case of genuine redundancy.

Making the employee apply for their own job

Subjecting an employee to a competitive recruitment process for an advertised vacancy in an associated entity can be unfair. It may lead to the conclusion that the employee was not genuinely made redundant. However, the Fair Work Commission will not tell the employer how to conduct their business. The FWC will only be required to acknowledge that the decision to not offer an employee a redeployment was an appropriate decision for the business’ operational reasons.

Employers responsibility to look for alternative role

As the Full Bench observed in TAFE NSW v Pykett, to show that it would have been reasonable for an employer to redeploy an employee. It is not necessary to identify a particular job or position in which the employee could have been redeployed. However, the Commission must be satisfied on the balance of probabilities. Based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the employee.

Nevertheless, if an employer responsibly. It must carefully conducts a recruitment process for alternative roles and appoints another employee accordingly based on skill and experience. This then is considered appropriate. The combination of these cases illustrate the real difficult in winning a redundancy case of unfair dismissal in the FWC.

Conclusion to: Redundant Employees is there justice in the FWC

Thank you for reading the article “Redundant Employees, no justice in the FWC’. I hope it was informative for you, there is no easy answer though this maze. Get advice. We are A Whole New Approach P/L. The nations leaders in workplace commentary, advice, representation and research. We confront the hard issues. AWNA are not here to be controversial and show offs for publicly, we leave that to others. We are proud of our staff and the outcomes we get for our clients.

Any Fair work Australia, Fair work Commission or equal opportunity matters give us a call its free. All unfair dismissal matters, resignations, whatever, we are here for you. We work on a national basis, including Victoria, NSW, Qld

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