Multi-national employers will be pleased to learn that the Fair
Work Commission ( FWC ) has agreed that it was not
reasonable for an employer to redeploy a redundant worker to
overseas operations.
The Australia-based employee brought an unfair dismissal claim
claiming his dismissal was not a genuine redundancy. The employee
sought to challenge the termination of his employment on the basis
that his former employer should have explored suitable alternative
employment across the global group to redeploy him overseas rather
than terminate his employment as a result of the redundancy in
Australia.
Under section 389(2) of the Fair Work Act 2009 (Cth) a termination
is not a genuine redundancy if it would have been reasonable in all
the circumstances for the employee to be redeployed within the
employer's enterprise or an associated entity of the employer.
In its defence of the termination, the employer submitted that
there were practical difficulties that made overseas redeployment
unreasonable in the circumstances, such as relocation costs,
differences in company procedures and policies in the overseas
entity and no overriding central management.
In evaluating the reasonableness of redeployment, the FWC gave
consideration to the costs and impracticality of relocating the
employee overseas in the context of adverse overseas market
conditions.
Lesson for employers: For employers operating as
part of a global group this decision provides a sensible analysis
of when it is unreasonable for an employer to redeploy a redundant
Australian employee to overseas operations. This decision does not
prevent employers from offering redeployment overseas, although
such an arrangement would not usually on its own be sufficient to
avoid paying redundancy pay to the employee.
Roy v SNC-Lavalin Australia Pty Ltd (2013) FWC 7309 (30
September 2013)
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.
