As Australian businesses attempt to navigate the unsteady waters of a COVID-normal world, they are constantly changing how they assess their current organisational requirements. Through this process, some employees may find themselves redundant in circumstances where their role is no longer required. While many redundancies will be the result of a genuine change in operational requirements, making a person redundant to simply shift their responsibilities to another worker can, in some cases, constitute an unfair dismissal.
For a redundancy to be genuine, the job must no longer be required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. In the eyes of the courts, a job is “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. Following a restructure, it is common for responsibilities to be divided up or shifted around. Thus, a redundancy may still be considered genuine where those responsibilities survive a restructure but are redistributed or absorbed into other positions.
If you have been made redundant and you believe it was not by way of genuine redundancy, you may be able to challenge your dismissal through an application to the Fair Work Commission. The distinction between genuine and non-genuine redundancy can be difficult to make out, and seeking legal advice is recommended. This question is heavily fact-based and depends on the particular circumstances of the case. As such, results can differ between individuals.
It often becomes a question of degree, whether ‘the duties and responsibilities of the position are so substantially altered that it is largely stripped of its functions’. If a role sufficiently similar to yours outlasts the operational changes, your termination may not be a genuine redundancy. Ultimately, this is a difficult determination to make and one which is heavily dependent on the specific circumstances of your case.
If an employer has failed to comply with a relevant award or an Enterprise Bargaining Agreement concerning the consultation process/procedure, then the redundancy will be non-genuine, and as such the employer may be found to have unfairly dismissed the employee. The onus rests on the employer to prove that the employee was dismissed because of genuine redundancy, on the balance of probabilities.
A redundancy will also not be genuine if it would have been reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. So, if there was an available suitable role for you in the employer’s enterprise, and you are not redeployed, you may have been unfairly dismissed.
An employer will have a jurisdictional objection against an unfair dismissal claim if the dismissal was a case of genuine redundancy. If found to be valid, this will defeat the unfair dismissal claim.
If you believe this scenario applies to you, contact the lawyers at McDonald Murholme for further advice.