A redundancy can be deemed to be an "unfair dismissal"
if it would have been reasonable to redeploy the employee into a
vacant position within the organisation.
One of the factors for determining whether it would have been
"reasonable" to redeploy is whether the employee has the
skills and experience necessary for the available position. The
employee may lack the necessary skills or experience or,
conversely, may have a level of skill and experience that is too
high for the position in question. The latter scenario gives rise
to the interesting question of whether it is 'reasonable'
to redeploy an employee into a position for which they are
Employers have generally been required to take a conservative
approach to these issues following the Full Bench decision in
Jenny Craig Weight Loss Centres v Margolina  FWAFB
9137. In that case, the dismissal of a Regional Manager was found
not to be a genuine redundancy because the employer had failed to
offer her an available position, despite that position having
'much less' responsibility and a 'much lower'
However, the recent Fair Work Commission decision in Rahimi
v Perth Educational Group  FWC 7123 suggests that an
employer will not be required to offer redeployment where the
employee's skills and experience are well above those required
for the lower position.
In the decision, Commissioner Cloghan accepted the
employer's argument that it was not reasonable to redeploy a
'Marketing Manager', who had reported directly to the CEO,
into the position of 'Enrolment Officer', which involved
'routine clerical work'.
The Commissioner took the view that it would be 'unwise'
to redeploy an employee if they are overqualified for the available
 It is said that management is a "balancing
act". Without hesitation, it can be said that a disinterested
observer would say, "it would be unreasonable, if not
perverse, to consider Mr Rahimi for routine clerical work required
in the position of Enrolment Officer". There would be a
considerable imbalance between his skills and experience, and that
required of the position of Enrolment Officer.
 Secondly, the same disinterested observer would say
that, from an employer's perspective, "deployment of Mr
Rahimi into the Enrolment Officer's position would most
probably end up with employee dissatisfaction and associated
This decision should provide some assurance to employers who may
be reluctant to redeploy employees into positions for which they
are overqualified, following a redundancy. However, given the
reasonableness of redeployment will always depend on the particular
facts and circumstances, early advice is recommended.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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