Non-Genuine Redundancy: What Australian Workers Need to Do If Their Job Wasn't Really Redundant

Has Your Position Really Been Made Redundant?

Being told that your position is "redundant" can be devastating. Many workers assume that once an employer uses the word redundancy, there is little that can be done. In reality, not every redundancy is genuine.

Under the Fair Work Act 2009 (Cth), a dismissal will not be considered an unfair dismissal if it is a genuine redundancy. However, where an employer uses redundancy as a convenient excuse to remove an employee, avoid performance management obligations, replace an employee with a cheaper worker, or restructure a workplace without properly consulting, the redundancy may not be genuine.

If your redundancy is not genuine, you may be entitled to challenge the dismissal in the Fair Work Commission.

What Is a Genuine Redundancy?

Section 389 of the Fair Work Act provides that a person's dismissal will be a genuine redundancy if:

1. The employer no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

2. The employer has complied with any consultation obligations contained in an applicable modern award or enterprise agreement; and

3. It would not have been reasonable in all the circumstances for the employee to have been redeployed within the employer's enterprise or an associated entity.

All three elements are important.

An employer cannot simply declare a position redundant and expect the Fair Work Commission to accept that characterisation.

Non-Genuine Redundancy: What Australian Workers Need to Do If Their Job Wasn't Really Redundant

Signs Your Redundancy May Not Be Genuine

Someone Else Is Doing Your Job

One of the most common indicators of a non-genuine redundancy is where the employee's duties continue after termination.

If another employee, contractor, labour hire worker, or newly recruited employee performs substantially the same duties, questions arise as to whether the position was genuinely abolished.

The Commission examines the reality of what occurred rather than the label used by the employer.

Failure to Consult

Many awards and enterprise agreements contain mandatory consultation provisions.

These provisions generally require employers to:

• Notify affected employees of proposed changes;

• Discuss the likely effects of the changes;

• Consider measures to avoid or minimise adverse consequences; and

• Give employees an opportunity to provide input.

A failure to meaningfully consult may prevent an employer from relying upon the genuine redundancy defence.

No Consideration of Redeployment

Employers are generally expected to consider whether suitable alternative positions exist within:

• Their own organisation; and

• Associated entities.

The obligation is broader than many employers realise.

A failure to genuinely explore redeployment opportunities can result in a finding that the dismissal was not a genuine redundancy.

The "Restructure" Only Affected One Person

Where a restructuring exercise appears targeted at a single employee, the Commission may closely scrutinise the employer's explanation.

Particular attention may be given to whether:

• There were prior performance concerns;

• The employee had recently exercised workplace rights;

• The employee had made complaints;

• The employee had suffered a workplace injury; or

• The employee belonged to a protected group.

The Position Is Re-Advertised

If the same or substantially similar position is advertised shortly after termination, the employer may face significant difficulty establishing that the job was no longer required.

What Evidence Should You Collect?

If you believe your redundancy was not genuine, preserve evidence immediately.

Important evidence may include:

• Termination letters;

• Redundancy correspondence;

• Organisational charts;

• Position descriptions;

• Emails regarding restructures;

• Consultation meeting notes;

• Job advertisements;

• LinkedIn recruitment posts;

• Internal vacancy notices;

• Witness statements from colleagues; and

• Evidence showing your duties continued after dismissal.

The sooner this evidence is obtained, the better.

Can You Lodge an Unfair Dismissal Application?

If the redundancy was not genuine, you may be eligible to lodge an unfair dismissal application under section 394 of the Fair Work Act.

Strict time limits apply.

Applications must generally be lodged within 21 days after the dismissal takes effect.

Many workers miss this deadline because they incorrectly assume that a redundancy cannot be challenged.

Could It Also Be a General Protections Matter?

In some circumstances, what is described as a redundancy may actually be adverse action.

Examples include situations where an employee is selected for redundancy because they:

• Made a workplace complaint;

• Exercised a workplace right;

• Took personal leave;

• Suffered a workplace injury;

• Raised safety concerns;

• Participated in union activities; or

• Possess a protected attribute under anti-discrimination laws.

In such cases, a General Protections application may be available.

What Remedies Can the Fair Work Commission Order?

Where a dismissal is found to be unfair, the Commission may order:

Reinstatement

Reinstatement remains the primary remedy under the Fair Work Act.

This can include:

• Return to employment;

• Restoration of continuity of service; and

• Recovery of lost remuneration.

Compensation

Where reinstatement is inappropriate, compensation may be ordered.

Compensation is assessed having regard to statutory criteria and is subject to legislative limits.

Practical Steps If You Suspect a Non-Genuine Redundancy

If you have been made redundant:

Step 1 – Do Not Assume the Employer Is Correct

The employer's use of the term "redundancy" does not make the redundancy genuine.

Step 2 – Gather Evidence Immediately

Secure relevant documents before access to systems and emails is removed.

Step 3 – Review Consultation Requirements

Determine whether an award or enterprise agreement applied and whether consultation occurred.

Step 4 – Investigate Redeployment Options

Consider whether vacant or suitable positions existed within the organisation or related entities.

Step 5 – Act Quickly

The 21-day unfair dismissal time limit is strict and extensions are only granted in exceptional circumstances.

Step 6 – Obtain Professional Advocacy Assistance

Early assessment can identify whether the matter involves:

• Unfair dismissal;

• General protections;

• Discrimination;

• Workplace rights; or

• Multiple overlapping claims.

Final Thoughts

A genuine redundancy occurs when a job genuinely disappears because of operational change, consultation obligations are met, and reasonable redeployment is not available.

Where the role continues, consultation is ignored, redeployment opportunities are overlooked, or redundancy is used as a pretext for removing an employee, the dismissal may not be a genuine redundancy at all.

Workers should not assume that a redundancy cannot be challenged. The Fair Work Commission regularly examines the substance of workplace restructures and will look beyond the label applied by the employer.

If you believe your redundancy was not genuine, act quickly. The 21-day time limit can expire before you realise that you may have a valid claim.