The Fair Work Commission has awarded a Business Development Manager over $15,000 in compensation after it found her termination was not a case of a genuine redundancy and that she was unfairly dismissed.

At the time of her dismissal, the Applicant held the role of Client, Sales and Business Development Manager. Following further restructuring in April and May 2016, the role held by the Applicant was identified as no longer being required. It was on these grounds the Employer lodged a jurisdictional objection asserting the dismissal was a case of genuine redundancy. Furthermore the Employer argued the Applicant was Award-free which freed them of their obligation to consult with the employee.  The Employer also argued despite attempts there were no options of reasonable redeployment.

The Applicant contends it was not a case of genuine redundancy as there were a ‘number of other positions available’ within the business, that she was Award-covered and that the real reason she was terminated was because the CEO disliked her and would not have supported her being offered another role within the business.

In line with the Fair Work Act, a genuine redundancy requires an employer to comply ‘with any obligation in a modern award’ and for consideration to be made for reasonable redeployment. It was agreed by the Commissioner that the Applicant was Award-free. Despite this, there continues to be a requirement for redeployment to be given due consideration. 

On 6 May 2016, all staff were notified of the opportunity to ‘express interest in Defence roles’ for a contract the business had been successful in obtaining with the Department of Defence. The Applicant notified the General Manager of her intention to submit an expression and scheduled a meeting at his direction with the General Manager of the Defence business on 26 May 2016 to discuss her interest. Through the hearing, the business maintained it was not aware what the final requirements for these roles would be, however the Commissioner did not accept this noting the business would have known what it needed in a general sense.

On 24 May 2016, the General Manager asked to have a “catch-up” where he discussed the fact the business was restructuring and that there would be some changes. The Applicant then attended a meeting on 25 May with the GM and HR where she was handed a termination letter advising her that her position had been made redundant and her employment would be terminated that day. The letter included a list of current vacancies across the business. The business argued it had discussed vacant roles with the Applicant in the weeks leading up to termination. The Commission considered this to be ‘disingenuous’ noting the only “discussion” was the list of roles noted in the termination letter.

During the hearing the GM claimed he ‘commenced consultation discussions’ in April, when he met with the Applicant and the Senior Manager to discuss the changes required in the structure and management of the business. It was held there was a ‘clear implication’ that he was ‘considering removing one or both of their positions from the structure’ given they were the only two management roles. The Commissioner held that an employee should not have to infer from conversations about how a business was operating, as had occurred in these meetings that their role is ‘in jeopardy’. The Commission confirmed it was not until the 25 May meeting that the Applicant was notified of this.

The Commission noted the Applicant had valuable experience in respect of the business’ operation and working practices and as such considered there were a number of roles to which the Applicant could have been redeployed even if the precise terms were not finalised. It was on this basis that the Commission found that it would have been ‘reasonable in all of the circumstances for [the business] to redeploy’ the Applicant and as such her termination was unfair.

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals training to increase your knowledge of counselling and discipline processes, and how to best manage unfair dismissal claims.