No Immunity from Redundancy During Leave or Flexible Work Arrangements

The FWC recently (Samuel Shilson-Josling v Atomic Search Pty Ltd [2024] FWC 3255 (25 October 2024) held that employees are not immune from redundancy while on leave or under flexible working arrangements provided operational issues necessitate it and the redundancy is genuine.

Our Take

This case should not be seen as a loss of protection for employees on leave or flexible working arrangements; rather, it underscores the importance of employers adhering to legal processes to ensure redundancies are genuine.

Employers must handle such situations carefully, justifying redundancies with clear evidence of operational needs, adhering to consultation requirements under relevant awards or agreements, and assessing redeployment options within their organisation or associated entities.

In cases such as this we can’t help but think clearer and earlier communication may have prevented the dispute ever arising.

Action Items

• redundancy should not replace performance management – the redundancy must be based on a genuine operational need, such as where the business has excess labour

• engage in meaningful discussions and make a reasonable effort to redeploy the employee to another position within the business or explore available alternatives to redundancy

• do not employ another person to perform the same job, in the same capacity or terms as the redundant employ – the business must provide evidence that they no longer require the job to be performed by anyone due to the operational needs

• mitigate exposing your business to claims of discrimination or adverse action -ensure that you are choosing employees on a factual and non-discriminatory basis and provide adequate evidence to support this

• be compassionate and respectful – redundant employees will experience feelings of failure and inadequacy – acknowledge the loss and provide an opportunity for employees to express their feelings – the respect and care shown to redundant employees will impact the morale of those remaining

• seek expert advice to ensure compliance with all legal obligations and minimise the risk of disputes or claims

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