FWC: Worker claims flexible working arrangement protects him from dismissal
The Fair Work Commission (FWC) recently dealt with a case where a worker challenged his redundancy.
He argued that being on a flexible working arrangement protected him from dismissal, and claimed conflicts with management and his recent sick leave were the real reasons behind the redundancy decision.
The case raised questions about whether employers can make workers redundant while they're on flexible arrangements, and what makes a redundancy genuine under Australian employment law.
The worker started in June 2021 as an SEO executive at a digital marketing agency. His role involved researching competitors, conducting keyword research, producing SEO content, and supporting senior team members. At the time of his dismissal in June 2024, he was working remotely from Japan under an agreed flexible arrangement.
The changes began when the head of SEO and national managing director started discussing ways to improve the SEO team's performance in late 2023. Following these discussions, the managing director requested a review of the SEO team in early 2024.
After this review, the employer decided to restructure the SEO team, eliminating the SEO executive role and creating a new, more senior SEO manager position based in Melbourne.
The worker's main argument centred on his flexible working arrangement. He said his dismissal wasn't fair because it happened while this arrangement was in place, citing advice he said he received from a Fair Work phone representative.
The Commission addressed this common misunderstanding, stating: "It is not uncommon for employees to believe that because they are on worker's compensation, paternity leave, sick/carer's leave, or subject to a flexible working arrangement, that they are immune from being dismissed for reasons of redundancy. But this is wrong."
The worker also raised concerns about conflicts with his line manager and pointed to correspondence about the manager's health. He mentioned taking sick leave just before the redundancy discussions started.
The Fair Work Act 2009 outlines specific criteria for genuine redundancy. The Commission explained a fundamental principle: "It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as [the employer] acted as it did because of changes in its operational requirements."
The employer explored redeployment options for the worker. On June 6, they sent him an email listing several available positions, including a strategist role in Sydney, a performance director role in Melbourne, a social communities manager role in Sydney, and three entry-level clerical positions. The worker only applied for the new SEO manager position.
In evaluating the worker's application for the SEO manager role, the employer found he lacked the required skills and experience. They also noted his performance as an SEO executive hadn't demonstrated readiness for promotion to the more senior position.
The Commission made three key findings about the redundancy. First, they stated: "[The worker's] job was genuinely no longer required to be performed by anyone because of changes in the operational requirements of [the employer's] enterprise."
Second, they noted: "No consultation obligations under a modern award or enterprise agreement applied to [the worker's] employment with [the employer]."
Finally, they concluded: "There were no available or suitable positions at [the employer] that [the worker] could have reasonably (in all the circumstances) been redeployed into at the time of his dismissal."
