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Unfair dismissal, genuine redundancy and the redistribution of duties


Being genuine

Discussions with employees about restructures and redundancies are difficult and emotions often run high.

Discussions with employees about restructures and redundancies are difficult and emotions often run high. Unfortunately, these things are a natural part of operating a business and can be the result of a range of factors from the introduction of new technology to the workplace, to a downturn in business.

With emotions running high, explanations about why a redundancy has occurred and what has happened to an employee’s job can sometimes get lost or confused. This is particularly so when an employer is required to downsize and redistribute the tasks of a redundant role amongst other remaining employees. Employees often ask – if some of the tasks remain within the business then the job still exists, right?

This issue was recently examined by the Fair Work Commission in the decision of Broudou v Eurolinx Pty Ltd [2019] FWC 4469 where a Technical Service Manager claimed that he had been unfairly dismissed when his position was made redundant.

The employee argued that his dismissal was not a genuine redundancy because his job was still required – he claimed the duties of his role remained within the business but were merely redistributed amongst other employees. On the basis that the redundancy was not genuine, he claimed to have been unfairly dismissed.

In determining the matter, the FWC considered the meaning of “genuine redundancy” as set out in the Fair Work Act 2009 (Cth).

There are three elements to the meaning of genuine redundancy:

  1. The employer must no longer require the employee’s job to be performed by anyone because of changes in operational requirements;
  2. The employer must comply with any consultation obligations it has under a modern award or enterprise agreement; and
  3. Redeployment within the employer’s business or an associated entity must not be reasonable in the circumstances.

The main question to be resolved in this case was whether the employer no longer required the employee’s job to be performed by anyone.

The employer submitted that it had experienced a downturn in business which necessitated the redundancy of the employee’s position and the redistribution of his duties amongst other employees.

The FWC considered what it meant for a person’s job to no longer be required and drew on the Explanatory Memorandum and other decisions which have considered similar situations. The FWC noted that a job involves a collection of functions, duties and responsibilities and that where a re-organisation takes place, a redundancy will have occurred if the re-organisation results in there being no duties or responsibilities left for the employee to discharge.

In this case, the re-organisation resulting from the downturn in business meant that the employer did not require anyone to perform the employee’s job.

The employee was also critical of the employer’s management of its business in general. He claimed that had the employer addressed inefficiencies in the business, his job would not have been redundant.

On this point, the FWC commented that:

The law more-or-less permits an employer to structure their business as they see fit. In this instance, the Fair Work Commission can take no recourse against what is clearly within the bounds of managerial discretion.

The FWC ultimately held that the termination of the employee’s employment was a genuine redundancy and his unfair dismissal application was dismissed.

Lessons for employers

When re-organising a business as the result of changes to operational requirements, employers are within their rights to redistribute duties and responsibilities. Where such redistribution results in an employee no longer having any (or enough) duties to perform, their job will be redundant, notwithstanding that some of their old duties remain within the business but with other employees.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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