A number of businesses are finding it challenging to make ends meet in the current climate, whilst others are using the pandemic as an opportunity to make changes in the way they conduct business. In recent times, this has caused for a number of employees to be caught up in a redundancy situation.


There are three elements to a genuine redundancy:


  1. The employee’s job is no longer required to be done by anyone.


A person’s job will be redundant if the employee has no duties left to discharge as a result of a change in the employer’s operational requirements. Put simply, if there is no longer any function or duty to be performed by a person, his or her position becomes redundant. The focus is on the person’s role and whether this survives the changes in the operational requirements of the business.


This, however, does not mean that the person’s role needs to be completely extinguished; a genuine redundancy may still come about in circumstances where a person’s functions have been absorbed by other employees in the organisation.


  1. The employer has complied with any consultation requirements in an applicable Modern Award or Enterprise Agreement.


If an employee’s employment is governed by a Modern Award or Enterprise Bargaining Agreement, then the employer will likely be obliged to consult employees about major workplace changes. Failing to consult (if the obligation exists) may render the dismissal not a case of genuine redundancy, in which case the employee may be entitled to bring an unfair dismissal claim.


Whilst a failure to consult may entitle an employee to bring an action, the Fair Work Commission may limit compensation to the length of time that it would have taken to properly consult about the redundancy.


It is important to note that not every employee is governed by a Modern Award of Enterprise Bargaining Agreement. If neither of these instruments apply, there is no obligation to consult about the proposed redundancy.


  1. It was not reasonable in all the circumstances for the employee to be redeployed.


A person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. An employer must consider other positions within its enterprise or the enterprise of an associated entity, as failure to do so may render the dismissal not a case of genuine redundancy. The job must be suitable, but this does not necessarily mean that positions which attract a lesser salary should be automatically disregarded.


The laws surrounding redundancies are complex and can have far-reaching implications. Obtaining legal advice at an early stage can help avoid pitfalls and problems down the track.


If you would like to discuss your Employment Law matters, please contact us to arrange an obligation-free call with one of our Lawyers.