As JobKeeper comes to an end next month, redundancies could be on the table for some organisations. So now is the perfect time to brush up on your legal obligations around redeployments.
With the COVID-19 pandemic (generally) under control in Australia and restrictions significantly eased, many businesses are reviewing structures in an attempt to survive and succeed in the post-COVID economy.
While many employers would be aware of the general need to offer redeployment opportunities to employees, there is still a lack of understanding of employers’ obligations and potential areas of risk.
In order to avoid landing yourself in any hot water, it’s best to brush up on exactly that’s involved in redeployments.
Redundant employees: retrenched or redeployed?
First, it’s important to understand the language. Redundancy means the abolition of a role (not a person) and redeployment is the employer’s obligation to find the person who used to hold the redundant role another role within the business.
Retrenchment occurs when an employee is dismissed by reason of redundancy and they end up leaving your organisation, usually when redeployment has been unsuccessful. So a redundancy doesn’t necessarily mean that an employee will be dismissed. In fact, most employers have a legal obligation to attempt offering redeployment opportunities before letting employees go.
Second, it’s important to understand from where the obligation to redeploy comes. Many employers will have redundancy policies which impose obligations to redeploy – in those situations, employers (usually HR professionals) need to read the policy closely to understand the organisation’s obligation.
Also, an enterprise agreement may impose specific conditions, such as a redeployment period, so it’s important that employers and HR professionals are aware of obligations owed to each individual in their companies (lawyers can assist with clarification).
Employers and employees need to be aware of what redeployment actually means.
A redeployment obligation does not require an employer to create a new role for an employee, and it does not force an employer to place an employee in a role. However, it does require a genuine attempt by the employer to identify roles which may be suited to the skills and experience of the employee. Simply providing a list of vacancies in different locations and with different skill sets won’t be sufficient; redeployment attempts need to be more comprehensive than that.
Employers should consult with the employee as they may have skills beyond those used in their current role, and employers are required to provide a reasonable level of training required for redeployment – so this is also worth keeping in mind.
The employer should then outline any vacancies that match the skill sets of the specific employee, which may be an involved task in a larger organisation. You need to be able to prove that you took into account the employee’s unique skills and capabilities before deciding that redeployment isn’t an option.
“A redeployment obligation does not require an employer to create a new role for an employee.” – Andrew Jewell, principal at Jewell Hancock Employment Lawyers.
Redeployment can be a competitive process – especially where there is a reduction in roles. However, it should never initially include external candidates; the affected employee should be assessed for suitability in a role before any external candidates are considered.
Risks to keep in mind
Even if there is no enterprise agreement or contractual redundancy policy, employees can still claim they were unfairly dismissed if you fail to follow correct processes.
If an employee is dismissed due to a redundancy, the employer can only defend any unfair dismissal applications on the basis that the dismissal was a case of ‘genuine redundancy’. A dismissal will not be considered a genuine redundancy if it was reasonable to redeploy the employee within the employer’s business or an associated business.
So while there isn’t always a positive obligation to redeploy someone, genuine redeployment is an important consideration to avoid an unfair dismissal claim.
While the need to make a reduction in roles can be genuine, when a redeployment process isn’t done correctly, it can open employers up to discrimination claims.
For example, if there is a need to choose between two existing employees for a vacant role and the employer chooses someone over a pregnant employee, the decision could be seen as discriminatory, and the employee could bring a claim under anti-discrimination legislation or the general protections provisions of the Fair Work Act 2009 (Cth).
The same could be said for someone who had recently exercised a workplace right, such as making a complaint, which HRM covered in an interesting case last week.
With JobKeeper coming to an end next month, it’s likely that some employers will find themselves in the unfortunate position of having to make redundancies – so now is the time to brush up on your redeployment obligations. For more information, you can visit the Fair Work Commission’s website.
Andrew Jewel is a principal at Jewell Hancock Employment Lawyers.