In a double blow, the business was forced to face the Commission alone after its lawyer was refused permission to appear only moments before the hearing.

The facts

The employee was a Chartered Accountant for the business. For a short period of his employment, he was responsible for payroll until the duties were taken on by a casual employee.

The employee’s direct manager was responsible for implementing a number of recommended changes to the business which resulted in the accountant’s role becoming redundant, and the creation of a new role titled “Bookkeeper/Finance Coordinator.”

The manager decided not to explore the Bookkeeper/Finance Coordinator role with the accountant based on the assumption he did not enjoy payroll and would not agree to a $10,000 reduction in remuneration.

The accountant was notified his role was redundant and subsequently went home for the remainder of the day. He did not work out his notice period. The accountant lodged an unfair dismissal claim.

The decision

The business disputed the claim on the basis the dismissal was a genuine redundancy.

The Commission accepted at the time of dismissal the employee’s role was no longer required to be performed by anyone. The Commission then considered whether the business had complied with its consultation obligations contained in its enterprise agreement. Unlike most agreements there was no requirement to consult with affected employees.

The Commission then assessed whether redeployment was reasonable in all circumstances and concluded that it would have been reasonable to offer the employee redeployment to the newly created position notwithstanding the duties and lower remuneration. The Commission cited Iryna Margolina v Jenny Craig Weight Loss Centers Pty Ltd [2011] FWA 2515 which relevantly stated “an employer should not presume to know how a redundant employee will react to an offer of redeployment to a lower paid position.”

Given the business failed to offer redeployment, the Commission deemed the dismissal was not a case of genuine redundancy.

Learnings for business

Even though the role was no longer required, this case highlights the importance of offering redeployment. Businesses need to understand their obligations in relation to offering suitable redeployment where a redundant employee holds the skills and capabilities to perform another available role. Presumptions as to what may be suitable for a redundant employee should not be made.

How we can help:

It is important for businesses to follow a fair process when making a role redundant. Our experienced consultants at the Victorian Chamber can support business by representing and advocating on behalf of members in Fair Work Commission proceedings. As a registered employer association, the Victorian Chamber is able to represent members without the requirement to obtain permission from the Commission.This means you can have confidence you will have the assistance and guidance you need.

Our Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements;
• Disciplinary processes, performance management and termination;
• Personal illness and injury;
• Parental leave and flexible working arrangements;
• Redundancy;
• Occupational Health and Safety and WorkCover.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222

[2021] FWC 1788