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In a recent unfair dismissal matter, the Fair Work Commission has reminded employers, once again, of the importance of not being hasty in their consideration of whether the redeployment of an employee whose position has been made redundant would have been reasonable in all the circumstances, writes Jason Goyal.
As HR practitioners will no doubt be aware, the Fair Work Act 2009 (Cth) provides that a person’s dismissal will not be held to be a genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or that of an associated entity: see, s 389(2).
The FWC found that an agricultural company based in Adelaide, which had formed the view that its HR division “lacked sufficient capacity to deal with increasingly common and complex industrial relations issues”, unfairly dismissed one of its employees, an HR consultant, whose role had been made redundant as part of its restructuring process.
Although there was a valid reason for the redundancy, the FWC found the dismissal was unfair, given the employer had “thoughtlessly blindsided” the dismissed HR consultant by failing to:
- Consult her on the restructuring.
- Temporarily redeploy her to fill a vacancy for the role of HR manager that it had advertised externally.
What can practitioners take away from the FWC decision?
Advising on organisational change is never an easy task – businesses will typically be firm on their objectives and will not welcome roadblocks from HR.
Practitioners must impress upon the business the importance of conducting meaningful consultation with employees who are subject to a restructuring process.
Where the role of an employee has been made redundant, a careful analysis of the circumstances is required to determine whether the employee ought to be redeployed.
As highlighted in the decision of the FWC, factors that will inform the reasonableness of redeployment include, but are not limited to, whether:
- There is a role, including one that is available only on a temporary basis or one that is not currently available but is about to become available, that the employee could be redeployed to.
- The location of the available role is suitable (noting that assumptions ought not to be made as to whether the employee would be willing to relocate).
- The employee has the requisite skills, qualifications, and practical and industry experience to competently perform the available role or undertake training to do so within a reasonable period of time.
Practitioners ought to remind the business that the FWC is not likely to consider whether an external job applicant may be a stronger candidate to perform an available role to determine the reasonableness of redeployment.
The decision of the FWC is a useful reminder that when a business is placed in the difficult position of having to consider the dismissal of an employee whose role has been made redundant, a meaningful (as opposed to a perfunctory) consultation process that is well-documented is key. In the event of a claim, the employer will be able to rely upon its consultation process to demonstrate the positive steps it took to determine whether there was a suitable available role to redeploy the dismissed employee to.
The case citation is Rewadee Piemyoosuk v Como Glasshouse No2 Pty Ltd - [2024] FWC 1550.
Jason Goyal is the managing principal of Resolve Employment Lawyers. The information in this article is general in nature and does not constitute professional legal advice.
