When is a redundancy not genuine?

"Redundant" is a legal test, not just a word your employer uses

Losing your job to redundancy is difficult enough without wondering whether it was handled properly. Many employees assume that once their employer says the word "redundancy," there's nothing more to question. In reality, a redundancy has to satisfy a specific legal test to be genuine — and if it doesn't, an employee who was dismissed may still be able to bring an unfair dismissal claim.

The three things a redundancy must satisfy

For a redundancy to be treated as genuine, your employer generally needs to show all of the following:

• your job genuinely no longer needs to be done by anyone, because of changes in the operational requirements of the business;
• your employer followed any consultation obligations set out in an applicable award or enterprise agreement; and
• it would not have been reasonable, in all the circumstances, to redeploy you into another role within the business or a related entity.

If any one of these isn't met, the redundancy may not be genuine — and the door to an unfair dismissal claim stays open.

Where redundancies often fall over

In our experience, two areas cause the most problems for employers, and open the most opportunities for employees:

Consultation. Many awards and enterprise agreements require employers to consult with affected employees before a redundancy is finalised — discussing the changes, the reasons, and ways to minimise the impact. A redundancy pushed through without genuine consultation can fail the test on that basis alone.

Redeployment. This is the area that trips up the most employers. Redeployment isn't limited to whether there's an existing vacant position sitting open. The courts have recently confirmed that this question can extend to whether an employer could have restructured how it uses its workforce — including reducing its reliance on contractors — to make room for a redeployed employee. In other words, an employer can't simply make a role "redundant" while continuing to have the same work done by someone else, such as a contractor, without at least considering whether the employee could have done that work instead.

What to do if your redundancy doesn't add up

If you've been made redundant and something doesn't sit right — you weren't consulted, your role's tasks were simply handed to someone else, or a similar position still exists — it's worth having it reviewed. Some questions worth asking:

• Was I actually consulted before the decision was made, or just told?
• Is my old work still being done — by a new hire, another employee, or a contractor?
• Was there another role I could have moved into that wasn't offered to me?
• Did the timing line up with a performance issue rather than a genuine operational change?

This article is general information only and does not constitute legal advice. Whether a redundancy is genuine depends on your specific circumstances — speak with one of our employment lawyers as soon as possible about your situation.

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