Redeployment vs redundancy: When should HR reconsider a termination?

The Western Australian Industrial Relations Commission (WAIRC) had recently ruled over the case of an employee who questioned the termination of his employment due to redundancy.

In deciding if the dismissal was unfair, the WAIRC considered whether the employer was able to “meaningfully” consider the employee’s redeployment. Find out how this case could help HR leaders decide on the proper course of action.

The employee was part of a small team of three lawyers working for the South West Aboriginal Land and Sea Council (SWALSC) until June 2021. At that time, SWALSC was at a strategic junction. It was evolving from a body whose primary purpose had been the pursuit and resolution of native title claims by the Noongar traditional owners to becoming a Central Services Corporation (CSC) to give effect to the settlement which resolved those native title claims in the South West of WA.

In April 2021, the legal team was informed that the entire legal department would be made redundant due to the settlement of the native title claims with the Western Australian government, known as the South West Native Title Settlement.

In June 2021, the employee’s position was made redundant. He then brought a claim challenging the termination of employment and seeking to be reinstated.

He filed his application on three main grounds, stating:

• There was no genuine redundancy as there remained a significant amount of legal work to be performed for the foreseeable future;
• There was a failure to properly consult; and
• The applicant’s selection for redundancy while another lawyer was retained was not appropriate.

The decision

The WAIRC found that the employee, a principal legal officer selected for redundancy, was entitled to compensation for loss. It said that while the dismissal was a case of genuine redundancy, the employer had not provided “meaningful consultation” with the employee and was “overlooked for redeployment,” thus, the dismissal was unfair.

The WAIRC considered that the restructuring of the legal team was in response to a true assessment of the employer’s business needs, and the redundancy was genuine. However, the WAIRC noted that “even in instances of a genuine redundancy, a decision to terminate employment may still be harsh, unjust, or unreasonable.”

What made the employer’s conduct “unfair” even if there was “genuine redundancy”?

It determined that the employer’s failure to inform the employee that one legal role would be retained deprived him of a fair opportunity to make a case concerning redeployment. As such, there was “no meaningful consultation in the process of redundancy,” and the dismissal was unfair.

The WAIRC also noted that the employer’s industrial agreement had clauses regarding the retention of mature-age workers. “Th employer should have considered this,” the decision said.

Finally, since reinstatement was found “not practicable, given that the termination of employment resulted from a genuine redundancy,” it ruled that the employee should be compensated.

The decision was handed down on 30 March.