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How proactive should you be to redeploy a redundant worker?

By Charles Power on August 21st, 2017

A worker’s dismissal is exempt from the Fair Work Act 2009 (Cth) (FW Act) unfair dismissal provisions on grounds of genuine redundancy. But it’s not exempt 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 employer.

This was examined by the Fair Work Commission (FWC) in Hallam v Sodexho Remote Sites Australia (2017). The case concerned a project manager employed in a relief pool to temporarily fill positions at various worksites on a fly-in fly-out basis.

The employer notified the worker that her position as a relief worker had been deemed redundant. The redundancy was the result of a restructure that caused the relief pools to be outsourced to an external labour hire company.

The worker was invited to consider other suitable redeployment opportunities within the business and was provided a full list of current vacancies nationally. The worker was told that if she was interested in a position she should notify the employer in writing and outline her knowledge, skills, experience and qualifications/licences as required by the position.

The worker argued it would have been reasonable for the employer to begin quarantining positions for her redeployment when the proposal was under consideration or, at the very least, notify her in a timely manner that her position was to be made redundant in order to give her more time to gain alternative employment.

Furthermore, there were several identified positions that the worker was capable of fulfilling during the redeployment period, but the employer did not make reasonable attempts to consider these or assist in her redeployment.

The FWC concluded that there was not a suitable position to which the worker could have been reasonably redeployed to. However, in making this finding the FWC observed the following procedural deficiencies:

As a significant employer, it would have been reasonable for the employer to notify the worker of the redundancy at an earlier date, and commence exploring redeployment opportunities at that time.

Avenues for redeployment

It would also have been reasonable to properly consult with the worker regarding the requirements of specific positions identified as possible avenues for redeployment, and provide all relevant information with the group of positions at the earliest stage.

Although the worker was requested to express interest in positions, given she was not reasonably proactive or responsive during the redeployment period it may have been appropriate to adapt the procedures to account for the periods where there were lapses in communication between the parties.

By expanding the period or commencing redeployment consultation earlier, and providing a full list of potential alternative jobs with sufficient information for the worker to express relevant interest, may have accommodated the worker.

However this would not have led to a different redeployment outcome, in the circumstances where the employer was changing its operations. Therefore, the dismissal was found to be a genuine redundancy and exempt from FW Act unfair dismissal laws.

As you can see, retrenching workers is such a tricky area for a number of reasons. That’s why it’s vital that you are aware of your workers’ entitlements and the legal risks involved.

I’ve written Managing Redundancies and, as the Editor-in-Chief of the Employment Law Practical Handbook I can assure you it contains everything you need to know about implementing a redundancy effectively, fairly and with the least possible impact on your business and staff.

The eBook also contains nine essential document templates that have been drafted by employment law experts to help you through the redundancy process, including a:

  • Retrenchment Letter
  • Statement of Service
  • Redeployment Letter
  • Deed of Release
  • Redundancy checklist

If you run a business or manage people, chances are you’ll have to implement a redundancy at some point – but, as I stated earlier, you will need to be careful.

Don’t delay. Order you copy of Managing Redundancies and be fully prepared should the tough decision to retrench workers eventuate.

 





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