National employers must offer employees they make redundant suitable and reasonable roles interstate, according to a recent Fair Work Australia case.
Fair Work Australia found that a Melbourne construction worker was unfairly dismissed when national company J Hutchinson made him redundant because the construction company did not fully comply with its obligation to consider all available redeployment options.
On March 6 this year, J Hutchinson dismissed the construction worker from its Docklands project on the basis that the job he was doing was no longer required.
There was a vacancy in the construction company’s Queensland operations which the construction worker could have filled.
However, the construction worker’s Victorian managers confined their enquiries on redeployment opportunities to J Hutchinson’s Victorian division.
J Hutchinson argued it would have incurred “significant” costs on the interstate deployment of the construction worker but Fair Work Australia found there was no contractual or statutory obligation for J Hutchinson to pay the worker’s relocation costs.
Fair Work Australia found it was not the worker’s responsibility to identify redeployment opportunities and it was reasonable for J Hutchinson to have made broader enquiries about interstate opportunities given its high level of administrative organisation, size, the nature of the work performed by its employees and the national character of its business.
Fair Work Australia decided there was no valid reason for the construction worker’s dismissal and found the dismissal was harsh, unjust and unreasonable.
Alice DeBoos, partner at law firm Middletons, told SmartCompany following the case an employee’s dismissal will be classified as an unfair dismissal rather than a genuine redundancy if the employer could reasonably have redeployed the employee within the employer’s enterprise or within an associated entity of the employer.
“J Hutchinson had not looked specifically at redeployment opportunities elsewhere in its national business and had confined themselves, quite understandably, to looking at the region,” she says.
“This decision says companies need to look well beyond their own regions and, if national, look nationally for redeployment.”
DeBoos says the case imposes a “very onerous” obligation on employers.
She said the Fair Work Australia decision was based on the fact the construction worker said he would have been perfectly happy to meet the cost of relocating to Queensland, and if he had not said that the case might have been decided differently.
“If he had said no and it would cost J Hutchinson several thousand dollars to relocate him plus Living Away From Home allowance that might have been different as that might not be reasonable,” she says.
“An employer needs to offer interstate jobs but there is no obligation to pay for relocation,” she says.
DeBoos also warns that many employers do not understand the meaning of redeployment.
When considering redeployment options, DeBoos says an employer should not only consider roles that are the same as the position occupied by the employee at the time of their redundancy.
“Redeployment is not saying someone can apply for a job, redeployment is giving them the job,” she says.
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