Under the Fair Work Act 2009 (Cth), a person who has been unfairly dismissed has rights and remedies because of the dismissal. Possible remedies to an unfair dismissal include monetary compensation and reinstatement.
However, a dismissal will not fall into the definition of an unfair dismissal if it was a case of a genuine redundancy.
What is a genuine redundancy?
A dismissal is a case of genuine redundancy if the employer no longer required the job to be performed by anyone because of changes in the operational requirements of the enterprise.
The Employer must consider re-deployment options and comply with any obligation in a modern award or enterprise agreement to consult about the redundancy.
It is very important that an employer carefully considers these obligations, as a failure to comply can mean that it would not be a genuine redundancy.
In Harrison v Queensland University of Technology  FWA 8789, the employee’s dismissal was held not to be a genuine redundancy despite the fact that the employee’s position was no longer required. This was because QUT had failed to take several vital steps in the redundancy process. For example, the employer did not discuss or consult with the employee any possibility of redeployment before the decision to terminate the employment was made.
A person’s dismissal was not a case of general redundancy if it would have been reasonable in all circumstances for the person to be redeployed within:
- the employer’s enterprise; or
- the enterprise of an associated entity of the employer.
It should be noted that in Harrison v Queensland University of Technology  FWA 8789, an offer of redeployment was provided to the employee by letter.
However, there was no consultation or discussion with the employee about redeployment, before the decision to terminate the employee’s employment was made. There needed to be a real consideration of options for redeployment.
If you are an Employee
If you believe that the termination of your employment was not as a result of genuine redundancy, there may be rights and remedies available to you under the Fair Work Act 2009 (Cth). Contact us for advice as soon as possible.
If you are an Employer
If you are considering making an employee redundant, legal advice is important to ensure that the redundancy is “genuine”.