By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal in Adelaide. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).
Enacting redundancies within the practice can be a stressful task. To minimise the risk of an unfair dismissal claim from a redundancy that is not genuine, one requirement for employers is to ensure that they have exhausted all reasonable possibilities to redeploy the employee within the practice or associated practices. When considering redeployment, what is reasonable? Fair Work cases provide examples of what may or may not be reasonable.
Could additional training and supervision for another position be reasonable?
It may not always be possible to redeploy someone into a position with the exact same role, responsibilities and skill level. However it may be reasonable to redeploy an employee into a similar position and assist them by providing training to become proficient in a new position.
In the case of Crema and Others v AbiGroup Contractors Pty Ltd (2012), four employees were made redundant, but made unfair dismissal claims stating that their employer could have redeployed them all into vacant positions within another division of the company. The employer stated that this was unreasonable as the vacant positions required the use of different tools and skill sets. Fair Work gave consideration to the fact that the vacant positions held the same base level classification as the positions held by the four retrenched employees, and also that some of the successful applicants to these vacant positions received 10 weeks of training and direct supervision. It would therefore have been reasonable for the employer to instead redeploy the four employees into one of the vacant positions and provide them with the additional training and supervision that was being offered to the successful job applicants.
In contrast, in the 2014 Far Work decision of Ms Kaye Wilson v Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis, the employee made an unfair dismissal application after she was retrenched from her position as a book keeper. The employer’s restructure required a new bookkeeper with an additional skill level and education in bookkeeping. Fair work did not think it reasonable to redeploy Ms Kaye into this new position as the additional training would take at least six months to one year for her to complete before she filled the new requisite skill requirements. In addition, it was also not reasonable for the employer, a small business owner, to pay for the employee to study a certificate IV in book keeping in order to meet the new requisite skill level required.
Notes for employers: Short term additional training and supervision may be a reasonable sacrifice for the employer to make when considering redeployment options. Employers should have consideration of what skills are required and the cost and time needed for the employee to attain the required knowledge and skill level necessary to perform the vacant position.
Could redeployment to a lower pay bracket be reasonable?
An employer may have difficulty in redeploying someone if the only other available positions within the practice are of a significantly lower level of responsibility or different working hours. However employers should be careful not to assume that a lower paid salary would not be reasonable. It will always depend on the circumstances of the individual case. In a former 2011 case, the employee held a senior management position which became redundant after a restructure. The only vacant positions at the time were of a lower responsibility and pay so the employer assumed that the employee would not accept one of the vacant positions. The employee made a fair work claim of unfair dismissal on the grounds that had they in fact asked her, she would have been happy to take a lower paying position to allow her to have more time with her young child.
Notes for employers: Remember your obligations to consult with your employee about the redundancy and use common sense when discussing potential vacancies within the practice or associated practices. An employee may not need to accept a position if the remuneration is significantly less than what they had been earning. However where possible, avoid making assumptions about what the employee may b redeployment options and allow an open discussion to determine all possible solutions.
Tip: Redeployment is meant to help limit the adverse effects that the retrenchment of the position will have on the employee. What is reasonable will differ depending on the individual employee. Fair work will consider both personal and professional implications of redeployment and the financial and practical effects on the employer. Failing to comply with procedural steps such as consulting can render a true redundancy invalid at law.
For further information or advice, contact us at [email protected] or visit www.clinlegal.com.au ow to Guides: How to Effect a Genuine Redundancy and Workplace Change: Your Obligations to ith Employees.