A dismissal in the case of genuine redundancy is exempt from
unfair dismissal laws under the Fair Work Act 2009 (Cth)
(FW Act). However, if it would have been
reasonable in all circumstances for the employee affected by
redundancy to be redeployed, the exemption from FW Act unfair
dismissal laws do not apply.
Redeployment refers to the employer offering an employee in a
redundant position, the opportunity to continue his or her
employment in another role. That alternative role need not be in
the same business or with the same employer. It can be in another
business carried on by the employer, or even with a different
employing entity that is controlled by the original employer.
When will it be reasonable to redeploy an employee affected by
redundancy? Based on the decision of the Fair Work Australia Full
Bench in Ulan Coal Mines Ltd v Honeysett and Ors 
FWAFB 7578, the following are relevant considerations:
Whether there are vacancies for jobs which are potentially
suitable for the dismissed employee, having regard to the skills,
qualifications and experience required for the position, the
location of the position and the level of remuneration, matched
against the circumstances applying to the employee and the
Whether redeployment to these vacancies would have any adverse
impact on operational efficiency on the employer
If the vacancy is with a different employing entity, the degree
of control the employer has in relation to the entity, and
The willingness of the employee to be redeployed to the vacant
A recent decision of the Full Bench of the Fair Work Commission
applied those principles in Skinner & Ors v Asciano
Services Pty Ltd T/A Pacific National Bulk  FWCFB 574.
The key question in this case was whether it would have been
reasonable in all the circumstances for the employees affected by
redundancy to be redeployed by the employer offering voluntary
redundancies to other employees in order to create vacancies for
employees in redundant roles. This was a redundancy process
described colloquially as 'swaps'.
The Full Bench ruled there is no general obligation for an
employer to implement or facilitate a process whereby employees
whose positions are redundant can swap with other employees who
wish to volunteer for redundancy. An employer who does not
implement such a process will not automatically be found to have
failed to meet the 'reasonable redeployment' requirement
for the redundancy to be considered to be genuine under FW Act
unfair dismissal laws.
However, the Full Bench ruled it was reasonable for the employer
in the case before it to allow employees whose positions are
redundant to swap with other employees who wish to volunteer for
The employer was a large business employing a significant
number of employees who undertake the same role as those being made
The number of employees performing the same or substantially
the same role – train driving – meant that allowing a
swap would not place onerous training requirements on the
In some cases there were potential swaps possibly available in
depots reasonably proximate to the depots in which the redundant
employees were working, so the employer would not have been exposed
to costs such as those associated with transferring employees
The employer had previously allowed swaps in similar
circumstances and had even suggested the swaps as a possible option
to mitigate the effects of redundancy in the round of redundancies
which resulted in the dismissal of the employees.
Therefore the Full Bench ruled it would have been reasonable in
all the circumstances for the employer to redeploy a person whose
position is redundant, by allowing that person to swap with another
employee who wished to accept redundancy. In failing to do this and
proceeding to dismiss the employees, the resulting dismissals were
found not to be cases of genuine redundancy. That meant the
dismissals were open to challenge under FW Act unfair dismissal
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