March 2019 | Scott Freidman

The recent case of Ken McShane v Port of Newcastle [2019] FWC 177 has restated the general principles applied in determining whether an employee has been let go as a result of a genuine redundancy, or if they were, in fact, unfairly dismissed.

This matter was brought to the Fair Work Commission by Mr McShane against the Port of Newcastle (PON) on the 10th of August 2018. Mr McShane alleged the decision of the PON to make him redundant was in contravention of the Fair Work Act (2009) (‘the Act’) on the basis that he was not offered ‘suitable redeployment’ in accordance with redundancy requirements under the Act.

Mr. McShane also alleged that he was unfairly discriminated against as a result of mental health issues he experienced throughout the course of his employment, particularly during the period leading up to his redundancy.

Before looking more closely at the reasons why Mr McShane’s application was dismissed, it’s useful to examine the qualifying factors of a genuine redundancy as opposed to an unfair dismissal.

According to s 389 of the Act a person’s dismissal is a case of genuine redundancy if:

  • the employer, due to changes in the operational requirements of its enterprise, no longer requires the employee’s job to be performed by anyone; and
  • the employer has complied with any obligation to consult about the redundancy under a relevant award or enterprise agreement.

A person’s dismissal was not a case of genuine redundancy if it would have been reasonable for the employee to be redeployed within:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

According to s 385 of the Act a person has been unfairly dismissed if the dismissal:

  • was harsh, unjust or unreasonable; and
  • was not consistent with the Small Business Fair Dismissal Code; and
  • the dismissal was not a case of genuine redundancy.

Looking again at Ken McShane v Port of Newcastle [2019] FWC 177, Deputy President Saunders was required to decide a number of matters before considering the merits of the unfair dismissal application. In respect of those he found:

  1. The application was made within the period required;
  2. Mr McShane was a person protected from unfair dismissal; and
  3. PON was not a “small business employer” and as such, the Small Business Fair Dismissal Code didn’t apply.

The only matter remaining in dispute was whether Mr McShane’s dismissal was a genuine redundancy.

His application was dismissed by the Commission as it was satisfied Mr McShane’s role was no longer required to be performed by anyone as a result of an ‘operational restructure’ in the business. Additionally, the only role Mr McShane could have been ‘redeployed’ to, required a more qualified individual with a university qualification.

His discrimination claim was also not substantiated.

As you can see, cases of unfair dismissal and genuine redundancy are complex areas of the law and require specialist advice and analysis. If you feel you have been unfairly dismissed speak to one of our experienced lawyers today on 9231 2466.

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