What are the requirements for redeployment of an employee where their current position is redundant due to advances in systems and technology?
Section 389 of the Fair Work Act 2009 (Cth) (“the Act”) requires an employer to offer an employee whose original role has been made redundant reasonable redeployment opportunities within the employer’s enterprise or the enterprise of an associated entity. This redeployment obligation exists for all redundancies, regardless of whether a redundancy is due to advances in systems and technology or another reason (such as due to a restructure).
A failure to offer appropriate redeployment opportunities may, in and of itself, allow an employee to achieve a successful unfair dismissal claim (even where the employer otherwise had a valid reason for the redundancy).
The ‘reasonableness’ of redeployment opportunities will depend on the specific circumstances in question. The reasonableness of redeployment will often depend on the nature of the employer’s business and the relevant employee’s skills. Other factors that may be used to assess ‘reasonableness’ may include:
Ideally, redeployment would involve a transfer into a new role with a similar level of pay and responsibility.
It is critical that an employer offer all reasonable redeployment opportunities that exist to satisfy the redeployment obligations under s 389 of the Act. Employers should even offer any positions of a lower status and pay that are available. This will give the employee the opportunity to accept or reject the roles as they see fit.
An employer will strengthen the view that they have satisfied the redeployment obligations under the Act by consulting with relevant employees about possible redeployment. Employers should consult even where they are not sure if there are any redeployment opportunities available or where the employer is not sure if the employee would be interested in accepting potential redeployment options. Such consultation may give the employee an opportunity to suggest redeployment opportunities which the employer had not yet considered. Further, the employee may use consultation to express interest in positions which the employer had not anticipated.
In order for an employer to satisfy their redeployment obligations, the employer must offer reasonable deployment to the employee. This means that the employer must offer to transfer the employee into the new position within the company or an associated entity. In this way, the employee is guaranteed the role if they choose to accept it.An employer will not have ‘redeployed’ an employee if the employer merely allows the employee to apply for a role.
It may be that no redeployment opportunities exist. In this instance, an employer should document their consideration and investigation of redeployment opportunities. This business case should also include any other evidence relevant to redeployment, such as any workflow problems within the business that may make redeployment difficult. It is important that such a business case is as thorough as possible because it may become the basis for an employer’s defence to an unfair dismissal claim due to failed redeployment.
Redeployment opportunities are an alternative to termination. If an employee elects not to accept a redeployment opportunity then the employee would have their employment terminated due to redundancy and would therefore be entitled to redundancy pay.
If an employee does accept a redeployment opportunity, then their employment will not be terminated so they will not normally be entitled to redundancy pay. For tailored advice on the instances in which an employee will not be entitled to redundancy pay due to redeployment, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
