In the recent case of Skinner et al v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574 the Full Bench found that an employer breached its obligation to explore redeployment options under s.389(2) of the Fair Work Act 2009 after making 7 of its employees redundant without properly considering job swaps and voluntary redundancies with other employees. These 7 employees who had previously had their unfair dismissal applications dismissed, consequently had their applications remitted for re-hearing.
Under s.389(2) of the Fair Work Act 2009 (the Act), a dismissal will not be considered a case of genuine redundancy if it would have been reasonable for an employer to have redeployed a person within the employer’s enterprise or the enterprise of an associated entity of the employer. If a dismissal is not considered genuine an employee may then have the right to bring an unfair dismissal claim.
In this case the Full Bench stated that a number of relevant factors needed to be considered for the purposes of s.389(2) of the Act, but that these factors would vary significantly from case to case. The Full Bench stated that these factors could include the required qualifications for the position, the skills, qualifications and experience of the employee, the location of the position and the level of remuneration. The Full Bench also re-stated the well established principle that it is not necessary for an employer to dismiss other employees or offer voluntary redundancies in order to create a vacant position to which a person whose role is being made redundant could transfer.
In relation to whether job swapping is a requirement for s.389(2) of the Act, the Full Bench found that there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy. Furthermore, an employer who does not implement this process will not automatically be found to have failed the requirements in s.389(2) of the Act. However, the Full Bench said that the redeployment obligation in s.389(2) is expressed in the context of “reasonable in all of the circumstances”, and that whether job swaps are reasonable, will depend on the facts in the particular case.
In this case the Full Bench found that the possibility of job swaps should have been considered by the employer because: the employer was a large business with many employees who undertook the same role as those being made redundant; there was a significant number of employees performing the same role (train driving) which meant that a swap would not place onerous training requirements on the employer; there were job swaps available to depots located reasonably close by which would not have resulted in significant transfer costs for the employer; the employer had previously allowed job swaps in similar circumstances; and, during the consultation process with the employees, the employer had raised job swaps as a possible option for mitigating the effects of the redundancies on the 7 employees.
In these circumstances, the Full Bench found that the employer’s failure consider job swaps in the context of the redundancies of the 7 employees resulted in the employer failing to comply with its obligations under s.389(2) of the Act. Consequently, the redundancy of the 7 employees was not a case of genuine redundancy.
For employers looking to discharge their obligations under s.389(2) of the Act it is important to genuinely and reasonably consider redeployment options in relation to their particular business and circumstances. As identified by this case, this could include job swaps and voluntary redundancies, but it could also include a number of other options. Furthermore, a prudent employer should inform affected employees of a range of different and available positions and should not simply assume that positions of lower status or remuneration will not be of interest to affected employees.
