Ms Penelope Behan v Risk Strategies Pty Ltd (U2014/1677) [2014] FWC 7176 SENIOR DEPUTY PRESIDENT RICHARDS

The Applicant in this case contended that as of early March 2014 the employer was in a potentially buoyant business environment for reasons of a new marketing program and that there was a prospect of additional employment opportunities as a result.

Around September 2013 the employer employed a consultant, whom it promoted to a senior consultant position in March 2014.

A little less than two weeks following the promotion of the new senior consultant, the Applicant received the redundancy correspondence as set out above.

The Applicant contended – as far as I interpret the Applicant’s submission – that the redundancy could not be genuine redundancy as she was merely shunted aside, as it were, by another consultant promoted into her position. This indicated that the Applicant’s position was never made redundant as such, but it was that a newly promoted employee stepped into her position and she was dismissed.

The SDP’s view was that:

“…the Act does not extend to an examination of the reasons for the selection of the Applicant’s position for redundancy:

Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.

“The Applicant may have another avenue for a remedy if she had been selected for redundancy because of her gender or family responsibilities, and so forth. Such grounds may support an application under Part 3-1 of the Act. But no such argument was made here, and this application would not have been an appropriate forum for such concerns to be agitated.

“In the circumstances here, the process of selection of the Applicant’s position for redundancy (vis a vis the other senior consultant in the Brisbane office) is not a relevant consideration for the determination of the jurisdictional question.”

Commentary

The redundancy process is one fraught with a number of employment law issues.  I believe this decision got down to the employer choosing one employee over the other. The SDP in this case has made it clear, insofar as the person chosen for redundancy is not done on the process does not breach (say) discrimination laws, it is up to the employer who they believe is best suited to carry on the business.

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