Termination based on genuine redundancy despite others being recruited

Termination based on genuine redundancy despite others being recruited.png

Termination based on genuine redundancy despite others being recruited

A worker terminated due to being made redundant has failed to convince the Fair Work Commission that the termination of his employment was not a case of `genuine redundancy’. In doing so, the Commission accepted the various reasons provided by the employer to explain his separation and subsequent appointments of other staff.

The worker had commenced employment with NODE Energy Services Pty Ltd (NODE) on 9 December 2019 as a `Power Systems Controller’. He was notified of his dismissal on 3 June 2021, due to the position becoming redundant, with an effective date of 4 June 2021.

Effectively, he claimed that his job was still required to be done, the operational requirements of NODE did not support his role no longer being required, and that he could have been reasonably redeployed into an alternative position with the business.

Both parties agreed that between 80 to 90% of his work focused on `scripting’. NODE’s submission was that the business had changed focus, and the cessation of a recent large job involving scripting essentially meant that the worker could no longer be usefully or productively employed.

The decision of Deputy President Boyce essentially endorsed the selection of the worker for redundancy. Importantly, the Deputy President rejected the worker’s argument that he should have been considered for other work as contemplated by the duties and responsibilities outlined in his Position Description, noting,

“In effect, a job may become not what is written on paper, but what is undertaken, such that when a decision as to redundancy arises, the focus will be upon what work was being performed, rather than by referring back to words on paper and exploring the same”.

The worker also challenged NODEs decision to make him redundant while engaging two new hires in March and April 2021.

However, the Deputy President accepted the employer’s submission that the two new hires were replacements for departing staff, were recruited prior to the redundancy decision, were `Power Systems Engineers’, and both had specific experience in `distribution skills’, which the redundant worker did not possess. As he noted, “his continuing employment would be an ongoing and unnecessary cost that the Respondent did not need to maintain merely so as to keep the Applicant in its employment”.

Consequently, the Deputy President concluded that the worker’s dismissal was a case of `genuine redundancy’, and therefore the Commission had no jurisdiction to hear or determine the unfair dismissal claim.

The Application was dismissed.

B B v NODE Energy Services Pty Ltd T/A NODE Energy Services (U2021/5559) 30 August 2021

For questions about staffing levels, redundancy selection, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.


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