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Rehiring after a Redundancy – Is there a Time Limit?
In a recent unfair dismissal case dealing with whether there is a time limit when rehiring after a redundancy, the Fair Work Commission was satisfied that the Applicant’s dismissal was a case of genuine redundancy, despite the company advertising the same role in less than one month. The Commission accepted that this could be explained by the fact that the market in which the company operates had fluctuated appreciably in the wake of COVID-19 requiring it to quickly adapt and refocus its operations.
The company, by mid-April, was experiencing a high downturn in sales in fuel and other retail operations as a consequence of the pandemic, which lead to the decision of restructuring its retail management, which included making the Applicant’s position redundant on 18 April 2020.
The Applicant filed an unfair dismissal application complaining of a deficient redundancy process, a failure to discuss and consider redeployment and alleging discriminatory and racist behaviour.
The Applicant became sceptical about the basis of his redundancy, when on 16 May 2020, the company posted a job on LinkedIn with the same position description as the Applicant’s old job. As part of the conciliation process, the company offered to rehire the Applicant in a newly created role. However, the Applicant claimed that the position description for this new role included all of his former obligations and performance requirements, together with some additional obligations.
The Commissioner was satisfied that the company had made the decision to make the positions of the Applicant and five other retail store specialists redundant because of changes in its operational requirements. The company gave evidence regarding the drop in petrol sales during April 2020, that there was a great deal of pressure on the business to reduce rents and that a large number of employees were either stood down completely or partially because there was not enough work.
In determining whether this was a case of genuine redundancy, the Commissioner considered whether it would have been reasonable in all the circumstances to redeploy the Applicant within the employer at the time of his dismissal on 17 April 2020.
On the evidence that once the COVID-19 restrictions were initially relaxed after the Applicant’s termination, the company’s sales performance improved “dramatically” which required the company to rehire employees. The Commissioner accepted that at the time of the Applicant’s dismissal there were no available positions within the employer to re-deploy the Applicant and therefore, that the dismissal was a case of genuine redundancy.
– There is no statutory or recommended time limit when rehiring after a redundancy. However, there are some matters that employers will need to consider before deciding to re-engage an employee whose employment was terminated due to redundancy or advertise the same position.
– Practically speaking, the longer the period between the redundancy and the employer re-advertising the job, the lower the risk that the original decision will be challenged. However, the real test will be determining whether the original redundancy was genuine, and this will depend on the particular circumstances at the time the employee was made redundant.
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12 May 2015