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Learning the Law

Job swap?

Article on Skinner v Asciano Services Pty Ltd [2017] FWCFB 574

The recent decision of a Full Bench of the Fair Work Commission should cause concern for employers regarding the interpretation of "genuine redundancy" under the Fair Work legislation.

In Skinner v Asciano Services Pty Ltd [2017] FWCFB 574 ("Skinner"), the Commission has cast doubt on the previously settled interpretation of Section 389 of the Fair Work Act 2009.

Until this recent decision, employers knew with some certainty that redundant employees would be unable to successfully make an unfair dismissal application provided that that they could show:

1. The employer no longer required the employee's job to be performed by anyone because of changes to the operational requirements of the employer;

2. The employer had complied with any obligation in the Modern Award or Enterprise Agreement that applied to the employment to consult about the redundancy; and

3. There were no opportunities for redeployment within the employer's enterprise or associated entity of the employer.

Prior to the decision in Skinner, it was accepted by the Fair Work Commission that there was no general obligation to facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy (Gilbert v Asciano [2015] FWC 364).

However in this instance, the Full Bench in Skinner held that in the circumstances it was reasonable for the employer to allow a potentially redundant employee to "job swap" with another employee that volunteered for the redundancy. The employer’s failure to consider the opportunity of redeploying the redundant employee into a position of a fellow colleague meant that the dismissal was not found to be a case of a genuine redundancy.

Skinner creates great confusion amongst previously well understood principles and employers must now consider a "job swap" scenario.  This creates uncertainty for employers who need to make sure that they consult with all affected employees including those that may wish to volunteer themselves for the redundancy.  Failure to consider a "job swap" may leave employers at risk of being unable to defend an unfair dismissal claim.

Robertson Hyetts can provide assistance in identifying the correct awards, drafting employment contracts, policies and responding to the FWO in relation to complaints, audits and litigation.  Speak to our employment law team, Jessica Duff and Tessa Mead today on 03 5434 6666.