A redundancy can be deemed to be an "unfair dismissal" if it would have been reasonable to redeploy the employee into a vacant position within the organisation.
One of the factors for determining whether it would have been "reasonable" to redeploy is whether the employee has the skills and experience necessary for the available position. The employee may lack the necessary skills or experience or, conversely, may have a level of skill and experience that is too high for the position in question. The latter scenario gives rise to the interesting question of whether it is 'reasonable' to redeploy an employee into a position for which they are 'overqualified'.
Employers have generally been required to take a conservative approach to these issues following the Full Bench decision in Jenny Craig Weight Loss Centres v Margolina [2011] FWAFB 9137. In that case, the dismissal of a Regional Manager was found not to be a genuine redundancy because the employer had failed to offer her an available position, despite that position having 'much less' responsibility and a 'much lower' salary.
However, the recent Fair Work Commission decision in Rahimi v Perth Educational Group [2015] FWC 7123 suggests that an employer will not be required to offer redeployment where the employee's skills and experience are well above those required for the lower position.
In the decision, Commissioner Cloghan accepted the employer's argument that it was not reasonable to redeploy a 'Marketing Manager', who had reported directly to the CEO, into the position of 'Enrolment Officer', which involved 'routine clerical work'.
The Commissioner took the view that it would be 'unwise' to redeploy an employee if they are overqualified for the available position:
[57] It is said that management is a "balancing act". Without hesitation, it can be said that a disinterested observer would say, "it would be unreasonable, if not perverse, to consider Mr Rahimi for routine clerical work required in the position of Enrolment Officer". There would be a considerable imbalance between his skills and experience, and that required of the position of Enrolment Officer.
[58] Secondly, the same disinterested observer would say that, from an employer's perspective, "deployment of Mr Rahimi into the Enrolment Officer's position would most probably end up with employee dissatisfaction and associated difficulties".
This decision should provide some assurance to employers who may be reluctant to redeploy employees into positions for which they are overqualified, following a redundancy. However, given the reasonableness of redeployment will always depend on the particular facts and circumstances, early advice is recommended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
