Genuine redundancy – Have you really considered all
available redeployment options?
Fair Work Australia (FWA) recently found that a Melbourne
construction worker was unfairly dismissed, and not genuinely
redundant, when a national company terminated his employment
because his employer did not fully comply with its obligation to
consider all available redeployment options.
J Hutchinson Pty Ltd (Company) is a national company employing
over 1,100 people and engaging 2,500 subcontractors, with a
turnover of A$1.2 billion. It comprises several regional divisions,
with human resources functions dealt with autonomously in each
division, including Victoria.
On March 6 this year, the Company dismissed a worker from its
Docklands project on the basis that the job he was doing was no
There was a vacancy or vacancies in the Company's Queensland
operations which the worker could have been engaged to fill.
However, this information was not known to the worker's
Victorian managers at the time he was retrenched because they
confined their enquiries on redeployment opportunities to the
Section 389(2) of the Fair Work Act 2009 (Cth) provides
"A person's dismissal was not a case of genuine
redundancy if it would have been reasonable in all the
circumstances for the person to be redeployed within:
the employer's enterprise; or
the enterprise of an associated entity of the
In Aldred v J Hutchinson Pty Ltd  FWA 8289, the
Company argued that it was not reasonable to consider redeployment
its Victorian division was operationally distinct from other
states and territories
the Company would incur a "significant" cost in the
interstate redeployment of the worker.
There was no contractual or statutory obligation for the
Company to pay the worker's relocation costs.
It was not the worker's responsibility to identify
It was reasonable for the Company to have made broader
enquiries about interstate opportunities given the Company's
high level of administrative organisation and having regard to the
size of the employer, the nature of the work performed by its
employees and the national character of its business.
FWA decided there was no valid reason for the worker's
dismissal and the dismissal was harsh, unjust and unreasonable.
Lessons for the employer
An employee's dismissal will be classified as an unfair
dismissal rather than a genuine redundancy if the employer could
reasonably have redeployed the employee within the employer's
enterprise or within an associated entity of the employer.
When considering redeployment options, an employer should not
only consider roles that are the same as the position occupied by
the employee at the time of their redundancy.
An employer must consider all available redeployment options in
a redundancy situation, including redeployment options that
a significant reduction in the relevant worker's
remuneration, responsibilities, duties and/or status
interstate opportunities that may exist within the
employer's enterprise or an associated entity of the
An employer should keep good records and notes of the steps it
has taken to consider whether there are any redeployment
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Women citation acknowledging our commitment to workplace
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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