Legal Insights

Genuine redundancy and redeployment: slips, trips and falls into the Fair Work Commission’s unfair dismissal jurisdiction

Olivia Hillier
Maree Skinner
Meaghan Bare
Dominic O’Sullivan

• 11 June 2025 • 5 min read

Industrial law has long sought to mitigate the impact of redundancy on employees and one way it does this is by encouraging employers to consider redeployment.

Redeployment is a matter taken into account under the Fair Work Act 2009 (Cth) when the Fair Work Commission is considering what is a genuine redundancy for the purpose of the unfair dismissal exclusion. A dismissal due to redundancy will not be one of ‘genuine redundancy’ if it would have been reasonable in all the circumstances to redeploy an impacted employee. In that case, an eligible employee will have access to the unfair dismissal jurisdiction.

Genuine redundancy and unfair dismissal

The test of ‘genuine redundancy’ (being an exclusion to unfair dismissal eligibility for an otherwise eligible employee), seems straight forward enough.

In simple terms, an employer will be well placed to raise a successful jurisdictional objection to an unfair dismissal claim if it can demonstrate the following:

And yet, as so many well-seasoned HR managers and people leaders know, the devil is in the detail and so often it goes wrong. An inadequate understanding and assessment of redeployment options may result in the reasonable redeployment limb not being met.

If a redundancy does not meet the test of being a ‘genuine redundancy’, a failure to consult of itself is not necessarily fatal to an employer defending an unfair dismissal claim. However, there is much greater difficulty avoiding a finding of unfairness if redeployment has not been properly considered.

Reasonable redeployment

When considering the question of reasonable redeployment, relevant factors include (but are not limited to):

Are there available alternative roles?
If yes, what is the nature of any available roles? Where are they located? How much do they pay?
Is the employee a suitable fit for any available role? Do they have the relevant skills, qualifications and experience? Is the role less senior/more senior than employee's current role?

When considering these factors, an employer should be careful not to make assumptions. See for example:

Alesia Khliustova v Isoton Pty Ltd [2023] FWC 658

What happened?
Employer did not offer an Australian based employee the opportunity of an available role in India with an associated entity because the pay was lower and the employee would need to relocate.
What the Fair Work Commission found
It was reasonable for the employer to redeploy the employee.
“Had Isoton consulted with Ms Khliustova, it may have been advised that she was keen to work in different cultures, prepared to travel and, despite the lower wages, would have liked to experience the role for 2-3 months. Such evidence was presented at the hearing. I have no reason to disbelieve Ms Khliustova” [at 26].
“It is dangerous for Employers with redeployment options to fetter offers based on their own prejudices” [at 27].

Aldred v J Hutchinson Pty Ltd [2012] FWA 8289

What happened?
Employer failed to consider interstate redeployment opportunities.
What Fair Work Australia found
The employer was a national construction business. It had the ability to enquire into and obtain information about redeployment opportunities across the national business and should not have confined its redeployment inquiries to just one state. Redeployment would have been reasonable in all the circumstances. The termination was not a genuine redundancy and was also unfair.

Many will be aware that Helensburgh Coal and Peabody Energy (the parent company of Helensburgh Coal) were granted special leave to the High Court on 5 September 2024 following a decision by the Fair Work Commission (FWC), upheld by the Full Court of the Federal Court, concerning reasonable redeployment.

Helensburgh Coal retrenched 90 employees in June 2020 and 22 of those employees brought unfair dismissal claims, alleging that their dismissals were not genuine redundancies because it was reasonable to redeploy them to roles at Helensburgh Coal Mine that were being performed by employees of contractors. The FWC found in the employees’ favour and, on appeal, the Federal Court was not satisfied that the FWC had erred, finding that, when considering what was reasonable in all the circumstances for the person to be redeployed, a relevant consideration is whether roles currently performed by contractors might be given to employees whose roles were no longer required due to operational changes.

The High Court hearing commenced in March 2025 and the High Court will be asked to form a view on Peabody/Helensburgh Coal’s contention that, the reasonable redeployment requirement only requires consideration of whether redeployment could have occurred within the employer’s enterprise at the time of dismissal based on any position vacancies that existed at that time, and does not involve consideration of any changes that the employer could have made to its enterprise to create space for the employees, such as by ending current agreements with contractors.

While we wait on the outcome of this decision, how other employers have got it right or wrong under the current case law provides useful guidance. So what can we glean from recent decisions?

Practical guidance from recent decisions

Employers are not obligated to offer employees roles that they are not qualified or suitable to perform. However, employers should be transparent about positions advertised during a restructuring process, including providing sufficient and meaningful information as to the actual role to be performed and the relevant qualifications and experience required.
- Sam Cossa v Laminex Group Pty Limited [2025] FWC 1074 (16 April 2025)
  The FWC considered whether an employee could have been redeployed into a role advertised by their employer on the same day they were retrenched. The FWC accepted that, while there were similarities with the listed responsibilities, the advertised role required qualifications and experience that the employee did not have, inhibiting redeployment.

Employers should be cautious when going to market for positions during a restructuring process, and should always consider redeployment of current employees whose roles will be impacted prior to filling new roles.
- Mrs Jacqueline Taylor v Classic Sports Industries Pty Ltd [2025] FWC 385 (17 February 2025)
  The FWC found an employee’s retrenchment not to be due to ‘genuine redundancy’, and also unfair, where the employer had created, advertised and filled a role during the restructure that the employee was capable of performing. The FWC considered that although the position had been filled prior to the employee’s termination – the employer had been considering making the employee redundant before it had been filled, and therefore could have reasonably redeployed the employee into the new role.

Employers have considerable discretion to determine what is best for their operations. Where a legitimate reason to convert to a casual workforce arises, employers are not obligated to maintain or offer permanent positions, but should consider offering casual positions to impacted employees.
- Mr Kauri Taumanunu v United Personnel Pty Ltd [2025] FWC 1365 (16 May 2025)
  The FWC concluded there was sufficient consideration of redeployment where the employer had reasonably determined it could no longer maintain a permanent workforce due to insufficient work, and offered all permanent employees the opportunity to revert to casual roles, or accept redundancy. The FWC found that an employee’s dismissal, resulting from their decision not to accept a casual position, was a ‘genuine redundancy’.

The fact that an available role would require relocation or an employee’s refusal to take up an available position may mean that it is not reasonable to redeploy an employee to an available role that they are otherwise qualified and suited for.
- Tom Byron v iSelect Services Pty Ltd [2025] FWC 1324 (14 May 2025)
  The FWC found that the employee’s dismissal was due to genuine redundancy where, as part of a restructure involving the transition from a remote work model to an in-office work model, the employee did not wish to accept the available alternative in-office position due to the long commute.

Key takeaways for employers

The onus is on the employer to consider and locate redeployment opportunities, not the impacted employee, when considering how to satisfy reasonable redeployment for the purposes of the ‘genuine redundancy’ exemption.
Employees may not always have access to enough information to be aware of what redeployment opportunities might be available, and therefore an employer cannot rely on an employee’s failure to suggest redeployment to conclude that they are not interested in suitable vacant positions.
What is expected of the employer will depend on its size and structure – for example, if your organisation has a large HR department, you will likely be expected to take substantial steps to find redeployment options.
An employer is not obligated to offer redeployment into a role where an employer has reasonably determined that the employee would not be suitable for that role, nor is the employer required to create new roles.
Where all available vacant positions have been identified and the employee chooses not to accept any of those roles, redeployment would clearly not be reasonable in those circumstances.

Have more questions about redundancy?

Redeployment and the ‘genuine redundancy’ test is just one of a number of important legal considerations that might arise in a redundancy and restructuring scenario. Maddocks’ Employment, Safety & People team advises employers on all aspects of the redundancy process. If your business is planning on initiating a redundancy and restructuring process, please feel free to reach out.

Contact

Olivia Hillier

Olivia has extensive private practice experience combined with the unique insight gained from in-house experience with one of Australia’s largest employers.

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Maree Skinner

Maree is a highly regarded employment lawyer who supports clients in the management of their employee and industrial relations issues.

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Meaghan Bare

Meaghan advises on employment and workplace relations, with strong experience in restructures, discrimination and protections claims, terminations, award interpretation, Fair Work Commission advocacy and unfair dismissals.

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