Redundancy, not as simple as you might think

Have you ever been let go from your employer based on the reason of redundancy and you were not convinced that your position was made redundant? Below is a brief guidance in relation to what you might be able to do in that context.

Is your dismissal a genuine redundancy?

In accordance with s389 of Fair Work Act 2009 (FWA):

A dismissal is a genuine redundancy when:

• The employee’s job doesn’t need to be done by anyone;
• The employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.

A dismissal is NOT a genuine redundancy if the employer:

• Still needs the employee’s job to be done by someone (e.g. hires someone else to do the job);
• Has not followed relevant requirements to consult the employees about the redundancy before termination; or
• Could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

Considering the above factors and your facts, if you believe that it is likely that your dismissal was NOT a genuine redundancy, you might be eligible to make an Unfair Dismissal Application to the Fair Work Commission (FWC).

Unfair Dismissal Application

An unfair dismissal application must be submitted to the Fair Work Commission within 21 days of your dismissal taking effect.

If you are making an application outside the 21-day time limit, it is called an out-of-time application and the Fair Work Commission may allow a further time period for the application to be made by a person if the Commission is satisfied that there are exceptional circumstances. The Commissioner will consider the following factors (s394 of FWA):

• The reason for the delay; and
• Any action taken by the person to dispute the dismissal; and
• Prejudice to the employer (including prejudice caused by the delay); and
• The merits of the application; and
• Fairness as between the person and other persons in a like position.

What would happen after you lodged an application?

Once the FWC has received the application, the Commission will consider relevant facts to find whether or not it was a genuine redundancy:

If the Commission found that it was a genuine redundancy, then the unfair dismissal application would fail; If the Commission found that it was NOT a genuine redundancy, they would then proceed to consider whether it was an unfair dismissal.

In order to determine whether the termination was an unfair dismissal, the Commission will review the facts and see whether it was harsh, unjust or unreasonable on a factual basis.

The Commission here can consider those factors used for determining whether it was a genuine redundancy. For example, in Guinea v Workpac P/L [2021] FWC 1633, the Commission found that the dismissal, on the basis of redundancy, was in the circumstances where it had not been shown that the employee’s job was no longer required to be performed, and the employer had not consulted the employee about his termination. Those two facts made the dismissal harsh, unjust and unreasonable.

On the other hand, successfully establishing that the dismissal was not a genuine redundancy does not necessarily guarantee a win in the unfair dismissal application. It is possible that even if the dismissal is found to be a non-genuine redundancy, the unfair dismissal application still may fail on the basis that the dismissal was not harsh, unjust or unreasonable.

For example, in the recent case of Shur v Innovit Australia P/L [2021] FWC 830, the Award consultation obligations regarding redundancy was not met and the Commission found the dismissal to be a non-genuine redundancy. However, the Commission also considered payment of redundancy entitlements and the fact that failure to comply with consultation obligation did not practically deny the employee opportunity to secure a different outcome. Therefore, considering all relevant facts, the Commission found the dismissal was not harsh, unjust or unreasonable and the unfair dismissal application failed.

Ultimately, the prospects of success depend on the facts of your circumstances. If you were terminated from your employment out of the reason of redundancy recently and you are not convinced that it was genuine, you might like to discuss your situation with our team, not forgetting the 21-day time period to file an application. If your application is out of the 21-day timeframe and you believe that the delay is justifiable, please do not hesitate to contact our office.