Re-hire of employee made redundant

We recently had a number of employees made redundant from our business due to shortage of work. As is the nature of the Construction industry, we have picked up some jobs in the last couple of weeks and would like to re-hire 1 or 2 of the employees made redundant. What is the risk to our business in doing this? Is there anything under the Fair Work Act 2009 that prevents us from re-hiring these employees?

The Fair Work Act 2009 does not contain any sort of limitation on re-hiring employees who have been made redundant.

When making the position of an employee or group of employees redundant, it is important that a business can show that the redundancy is genuine.

Under the Fair Work Act 2009, an employee’s dismissal will be considered a case of genuine redundancy if the following criteria are met:

• The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the business;
• The employer complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and
• That it was not reasonable in all the circumstances for the employee to be redeployed within the business or any associated entities of the business.

If a position that was made redundant is recreated within a short timeframe, the employee who was dismissed may try to claim that this is evidence that the role never ceased to exist (criterion 1 above) and that the termination was therefore not a case of genuine redundancy.

Whilst an employee only has 21 days after dismissal to lodge an unfair dismissal claim, the Fair Work Commission can (in limited circumstances) allow for an extension of this timeframe. As such, it is best to have any redundancy process well documented.

Please note that there may also be long service leave considerations when re-hiring a recently terminated employee as the employee's service may be seen as continous. In this case the relevant industrial instrument or legislation should be examined.

• Occasionally a business will have a policy that limits the recreation of roles within certain timeframes or the re-hiring of employees who are dismissed for reasons of redundancy. If this is the case, it is recommended that legal advice is sought before recreating a role or re-hiring an employee.