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Snapshot

  • A Federal Court decision has clarified the scope of an employer’s obligation to redeploy employees when relying upon the jurisdictional defence of genuine redundancy in the context of unfair dismissal claims.
  • A consideration of what is ‘reasonable in all the circumstances’ may include consideration of whether an employer could reduce its reliance on contractors and retrain employees to fill positions currently occupied by contractors.
  • The employer has filed a special leave application with the High Court.

In an unfair dismissal context, an employer may seek to rely on the jurisdictional defence of ‘genuine redundancy’. Section 389(2) of the Fair Work Act 2009 (Cth) (‘FW Act’) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

Since these provisions were introduced by the FW Act in 2010, there has been considerable litigation on the extent of this obligation. The full Federal Court decision in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 is the latest instalment and, as it involves consideration by a superior court, provides useful guidance on the scope of the ‘redeployment obligation’.

Facts

The case has a long and convoluted history. The decision relates back to the dismissal of 22 workers by Helensburgh Coal Pty Ltd (‘Helensburgh Coal’) four years ago following a restructure at the Helensburgh mine.

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