Worker says she should have been redeployed to India, not fired

FWC decision a cautionary tale for employers to not let prejudice get in their way

Worker says she should have been redeployed to India, not fired

The Fair Work Commission (FWC) recently dealt with a case involving a worker who says she should have been redeployed to another location of her employer’s company rather than being fired from work.

In its decision, the FWC said that the worker was a permanent full-time software engineer whose role included “providing development, enhancement, troubleshooting and maintenance of software.”

Genuine redundancy?

In 2022, the company decided to reduce its costs base due to experiencing financial challenges.

“This included removing a number of positions in Australia and reducing the number of positions previously intended to be recruited in India,” the Commission said.

Consequently, the worker attended an online meeting with the employer and two other employees, where they were notified that their positions were being made redundant.

Genuine redundancy, according to the FWC, happens if:

  • the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise
  • the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

The employer noted that no vacant positions were available for the redeployment of their employees whose jobs were affected by the redundancy. Thus, the only option was to dismiss the workers.

However, the employer admitted that during the workplace restructuring, it continued recruiting for fewer positions at its Indian operations. Hence, it was evident that the worker’s role would have enabled her to perform at least one of the roles in the Indian operation.

Nonetheless, the employer argued that it did not offer the Indian-based role to the worker as “he did not believe she would have accepted it as it was in India and had a lower level of remuneration compared to the Australian role,” the Commission said.

HRD previously reported about a manager’s unfair dismissal claim after she said she was “forced to resign” when she informed her employer that she was moving to France with her husband.

FWC’s decision

Having considered each factor in the case, the Commission found that the worker’s dismissal was not a case of genuine redundancy.

This generally means that it was clear that the worker’s company had a role available in a related entity that would have been sufficient for the worker to be redeployed.

The Commission further said that had the employer consulted with the worker, it may have been informed that the worker was willing to work in a different location and culture despite the lower wages.

“It is dangerous for employers with redeployment options to fetter offers based on their own prejudices,” the FWC noted. 

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