Judgment announcement at the High Court
In the world of employment, the term "redeployment" may not always mean what one might initially think. According to the Fair Work Act (FW Act), redeployment does not necessitate a vacant position and does not prohibit changes to an employer's use of its workforce to run its enterprise.
The FW Act defines a "genuine redundancy" as a dismissal where an employer no longer needs a specific job to be performed due to operational changes, and has complied with any relevant modern award or enterprise agreement regarding consultation about the redundancy. However, a dismissal is not considered a case of genuine redundancy if it would have been reasonable for the employee to be redeployed within the employer's enterprise or an associated entity's enterprise.
Reasonableness is an objective question that must be considered in the context of the employer's enterprise. The Fair Work Commission (FWC) must take into account all circumstances, including the attributes of the redundant employee and the employer's enterprise, when determining whether redeployment would have been reasonable. This includes the employee's skill set, experience, training, and competencies, as well as the employer's policies, plans, processes, procedures, business choices, contract terms, practical concerns, and anticipated changes.
The FWC's inquiry under s 389(2) is limited to the scope of the employer's enterprise as defined by s 12 of the FW Act. It's important to note that the FWC cannot alter the nature of an employer's enterprise or ignore its characteristics.
In a recent case, the decision of the port operator Helensburgh Coal Pty Ltd against Bartley HCA 29, the circumstances leading to the dispute are not publicly available, and no information has been found identifying the authors involved in the decision.
The concept of redeployment is not confined to a vacant position. Instead, it can encompass various scenarios where an employee can be reassigned within the enterprise to perform a different role that makes use of their skills and experience.
In conclusion, understanding the concept of redeployment and its role in cases of genuine redundancy is crucial for both employers and employees. It's essential to consider the unique circumstances of each case, as the FWC will evaluate the reasonableness of redeployment based on the attributes of the employee and the employer's enterprise.
