Can we require employees to apply for redeployment positions when we make their position redundant?
Employees are unable to make an unfair dismissal application when the dismissal is a genuine redundancy. Section 389 of the Fair Work Act 2009 (FW Act) provides that a redundancy is genuine if:
Additionally, for the redundancy to be genuine the employer must seek to redeploy the employee elsewhere in the enterprise, or an associated entity.
An essential part of redeployment is that a redundant employee is placed in another suitable position within the employer’s enterprise or associated entity as an alternative to termination.
Advertising a suitable alternative position and requiring the employee to apply and compete with other applicants for the position might lead to a dismissal being found not to be a genuine redundancy.
There is a substantial obligation on the employer to place an otherwise redundant employee elsewhere in its organisation, including within associated entities, if it wishes to avoid an unfair dismissal claim.
An employer will not have ‘redeployed’ an employee if the employer allows the employee to apply for a role.
The decision of Ulan Coal Mines Ltd v A. Honeysett & Ors [2010] FWAFB 7578 states that it will not constitute redeployment for an employer to allow employees to apply for another job while competing with other job applicants. This case states that redeployment means being “placed in another job”.
In this case an employer made workers redundant and then helped to facilitate their applications for jobs at other nearby mines which were associated entities of the employer. The workers had to compete with other applicants for these vacant positions and were not guaranteed roles for redeployment.
It was held that such conduct did not meet the definition of “redeployment” under the FW Act.
For further advice about redundancy, redeployment or any employee matter, Ai Group members are encouraged to contact us or call the Workplace Advice Line on 1300 55 66 77.
