How do I know whether my employer’s decision to make my position redundant is lawful or genuine redundancy?

Redundancy is a far more complex concept than most people know. Even judges get it wrong. There is no substitute for sound legal advice but here is a start.

Unless there is a policy, agreement or award which defines a redundancy, the Courts are guided by the common law definition of redundancy. The common law definition is that redundancy occurs where the employer no longer wishes the job performed by the employee to be performed by anyone. This meaning of redundancy is not only concerned with the abolition of a position but may arise on the redistribution of duties and responsibilities.

To determine whether your position is still being performed by another employee it is necessary to compare the attributes of your previous position with that of any similar position still being performed. For there to be a genuine redundancy it must be that the disparity between your former position and the similar position is such that it can be said that your position no longer exists.

The Fair Work Act 2009 (Cth) further states that a person’s dismissal was not a case of genuine redundancy if it would 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 of the employer.

If you are able to prove either that your employer still needed your job to be performed after your position was said to have been made redundant or that it would have been reasonable for you to be redeployed to another position, then you can establish that your employer’s decision to make your position redundant was not by reason of genuine redundancy.