In November 2010, the Full Bench of Fair Work Australia (“FWA”) handed down the authoritative decision of Ulan Coal Mines Limited (“Ulan”) v Honeysett and others (“The Honeysett Employees”) which provide the steps an employer needs to take to redeploy a redundant employee (so as to prevent a claim for unfair dismissal under the Fair Work Act2009 (Cth)) (“FWA 2009”).
Under the Unfair Dismissal provisions of the FWA 2009, an employee cannot bring an action for unfair dismissal in the instances of genuine redundancy. A redundancy is not considered to be genuine where:
- The employer has not complied with any consultation obligations in a modern award agreement or enterprise agreement that applied to the employment; or
- It would have been reasonable (in all the circumstances) for the person to be redeployed within
- The employer’s enterprise; or
- The enterprise of an associated entity of the employer.
It was accepted between the parties that the employer had complied with point 1, and the appeal turned on the issues of:
- Whether the employee could have been redeployed within the employer’s enterprise or associated entity; and
- What constituted a reasonable attempt of redeployment under the FWA 2009.
Impact of this decision on Employers
- When making an employee redundant, you need to consider whether there is an available position within your company or an associated entity that the employee would be able to fill instead of being made redundant;
- If there is a general application process in place, consider giving the employee preference over the general pool. Please note this may not be enough to avoid unfair dismissal.
- In the event that re-training would make an employee suitable for a position, this should be fully ...