When is changing a role a genuine redundancy

Vexed question

The question of what constitutes a ‘genuine redundancy’ is a perennial and vexed one. Getting it wrong can land an employer in hot water. This is particularly so in the unfair dismissal jurisdiction where employers are often on the back foot seeking to argue that the Fair Work Commission has no jurisdiction to hear an unfair dismissal due to the termination being a ‘genuine redundancy’.

Some clarity

A recent Fair Work Commission Full Bench decision has provided some helpful clarity by concluding that the addition of qualifications and duties to a role was sufficient for a taxi company to make out an argument of ‘genuine redundancy’. Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis v W [2014] FWCFB 1043. In this case, Mackay Whitsunday Taxis sought to increase its administrative capacity by abolishing its existing bookkeeper role and employing a qualified bookkeeper with the relevant Certificate IV qualification. Notwithstanding this, a decision was made to retain around 70% of the old book-keeping duties and to engage a qualified bookkeeper instead of the Applicant, Ms Wilson, who subsequently commenced her unfair dismissal claim after she was not offered the role.

A question of position

On appeal, the Full Bench held that the job was not the same job, with the requirement for additional qualifications reflecting new and higher level duties. In doing so, the Full Bench upheld the proposition that ‘…it does not matter if discrete duties or tasks survive the operational change or restructure and continue to be performed. The question to be determined, in actuality, is whether the former position itself survives.’ The book-keeper’s position had not.

Objective determination

While employers may take some comfort when they seek to upgrade a function and introduce new skill-sets and training to support the upgrade, it is nonetheless critical that there still be an objective determination whether a role actually exists or not moving forward. It is recommended that employers seek legal advice at an early stage of their consideration to understand properly the level of legal risk involved, and how best to mitigate this through a well thought out redundancy strategy and process.

@employee, you’re fired