Do I have to accept a redundancy if the redeployment options offered are not suitable?

In an age where employers are becoming increasingly cost-focussed in the face of economic stagnation and narrowing profit margins, employees are often made redundant in an attempt to save on wage costs.

Many employees who are made redundant feel powerless to contest this decision and are often forced to consider unsuitable options for redeployment or face unemployment.

The question as to whether an employee is required to accept a redundancy is dependent on whether the redundancy is ‘genuine’.

An employer is only entitled to terminate the employment of an employee by reason of redundancy in a situation where:

1. The employer no longer requires the employee’s role to be performed by any other person, and;
2. The employer has complied with any obligation in an applicable modern award or enterprise agreement to consult about the redundancy.

In addition to this criteria, the redundancy will also not be recognised as genuine where it would have been reasonable in all the circumstances for the employee to be redeployed elsewhere within the employer’s enterprise.

What constitutes a ‘reasonable’ redeployment is often the subject of controversy between the employer and employee, particularly when an employee deems the options presented unsuitable.

An employee who feels that they have been presented with unsuitable options for redeployment may contest their redundancy, if it can be established that another reasonably suitable position exists within the employer’s enterprise or the enterprise of an associated entity.

An employer may attempt to defend this allegation by pointing to differences between the employee’s previous role and the proposed redeployment option with reference to:

• Remuneration;
• Duties and responsibilities;
• Hours of work;
• Travel times; and
• Any other requirements or conditions surrounding employment in the proposed role.

In recent cases, the Fair Work Commission has emphasised the need for employers to consult employees about the kinds of roles that they would consider suitable. In these situations employees should take the opportunity to express to their employer any desirable alternative roles or conditions of employment they would consider.

For example, if an employee expresses indifference to receiving a significantly reduced remuneration package, the employer may be obliged to consider redeploying them to vacant positions despite the fact that it may not pay as well.

In some instances, the Fair Work Commission has imposed an obligation on employers to offer training to staff who have been made redundant, in order to equip them with the skills required for redeployment to a vacant position. Whether such obligations should be imposed upon employers is often assessed on a case-by-case basis.

However, failure by an employer to fulfil its responsibility to offer an employee reasonable opportunities for redeployment may give rise to a successful unfair dismissal claim by the aggrieved employee.

Further, if an employer imposes a redundancy on an employee where appropriate redeployment options exist due to a prohibited reason such as the exercise of a workplace right, family responsibilities or race, this may also give rise to a successful General Protections claims with the Fair Work Commission.