Genuine operational changes trump flexible-work arrangements, absences on leave

A presidential member of the Fair Work Commission has reminded all employees that genuine operational changes, such as redundancies, can occur at any time during employment, including when an employee is on leave, or whilst a flexible working arrangement is in force.

In October, Deputy President Boyce administered the sage advice when called upon to adjudicate an employee’s eligibility to pursue an unfair dismissal claim. The employer had raised a jurisdictional objection to the application on the basis the employee’s employment had ended by way of genuine redundancy, an argument Deputy President Boyce ultimately upheld.

In evaluating the events that led to the Search Engine Optimisation (SEO) Executive’s termination in June, Deputy President Boyce noted that the employer had legitimately restructured its SEO team, such that the job the SEO Executive had been employed in (since 2021) was no longer needed. In addition, the employer had consulted with the SEO Executive about the proposed change through multiple meetings in May and early-June 2024 – even though the SEO Executive was employed in an award/agreement-free role, meaning the employer was not bound to observe a designated consultation process – and Deputy President Boyce was satisfied no suitable opportunities for redeployment existed.

Interestingly, the SEO Executive did not dispute that the employer was entitled to make his role redundant, but he had mistakenly believed (purportedly, based on advice he received from the Fair Work Ombudsman or Commission) that the redundancy could not be enacted while he was subject to a flexible working arrangement which was permitting him to work remotely from Japan.

In reference to the employee’s misunderstanding in this regard, Deputy President Boyce observed:

“It is not uncommon for employees to believe that because they are on worker’s compensation, paternity leave, sick/carer’s leave, or subject to a flexible working arrangement, that they are immune from being dismissed for reasons of redundancy. But this is wrong. Operational issues or problems for a business can arise at any time. As a general proposition, an employee is never immune from being made redundant.”

Being satisfied that the employer had “made good its case as to genuine redundancy”, Deputy President Boyce dismissed the SEO Executive’s application for unfair dismissal.

Shilson-Josling v Atomic Search Pty Ltd [2024] FWC 3255 (25 October 2024)