When a business experiences a downturn, it is not unusual for the response to include redundancies. And when this is achieved by dispersing the duties of an employee, who is to be made redundant, among other staff who will remain, it can create some ill-will, and even claims of unfair dismissal because the work is still there to be done.
However the Fair Work Commission has laid out some basics to help employers and employees deal with these issues. In a recent case, a sales manager claimed in the FWC that all his tasks had been given to other employees including a new recruit, so he took the view that he was the victim of what was potentially a sham redundancy. He argued the work was still there to be done.
On closer examination of the facts and applying long established principles for determining the true nature of the situation, the FWC made the point that the job, and not the tasks, or even some of them, had been made redundant. The Commission went on to describe what the law has established a job is, namely, “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employers’ organisation, to a particular employee”.
The FWC then took the next logical step in determining the genuineness of the redundancy and examined “whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant”.
In other words, the FWC said that job no longer existed, so the holder of that job was redundant. Of course, the employer had to demonstrate that it had discharged its other responsibilities, such as proper consultation and attempts to re-deploy the redundant employee, before the claim of unfair dismissal could be determined. In this regard, the FWC found that the new employee’s position was so inferior in status and pay that it was not a serious contender for a re-deployment.
What this employer had done was break down the redundant job into numerous components, added those piecemeal to the existing duties of some remaining employees and a new (lower paid) recruit. The FWC found that “(f)ollowing that redistribution it became apparent that there were no substantive duties left for the (employee) to perform”. This was a legitimate employer response to the significant drop off in business and the unfair dismissal application was dismissed.