Just how far an employer has to go in keeping staff on when a redundancy situation has become a little clearer following a Fair Work Commission decision which canvassed the issues of redeployment and retraining. The case confirmed that an employer has an obligation to see if there is a suitable alternative job for a person facing redundancy at that time and not at some future time.
The case involved an employee who had been made redundant and had argued their employer has unfairly dismissed them because the employee could be retrained to perform it. The employee claimed she could acquire the necessary qualifications “within six months or less” and that the company had often retrained staff in the past. The employee had asked for the employer to pay the cost of tuition.
The employer argued that there was a world of difference between retraining for company specific changes and the type of ‘qualification training’ needed in this situation, a skill the employee would acquire, at her employer’s expense, which was easily transferable.
The FWC decided that the impost of at least a six month retraining regime was too much to expect the employer (a small business) to bear. The decision emphasises that the obligation on an employer might go to retraining provided it took “a reasonable period” for the person to acquire the necessary skills of the new position. In this case, the applicant admitted six months was needed and the employer argued it was more like a year.
Another issue dealt with in this decision goes to the timing of events. As part of her case, the employee submitted that personnel recruited after her dismissal to work in the areas where she had worked did not stay employed for very long. The employee argued this demonstrated her company specific skills, coupled with the retraining for the formal qualification, would have been a suitable redeployment option.
But FWC disagreed, saying the redeployment option arises at the time the redundancy is identified and if no suitable alternative position exists at that time, then there can be no redeployment. In this case, at the material time, no suitable alternative existed and what might have occurred some time later was irrelevant.