Challenging Redundancy: What Employers Often Get Wrong About Redeployment
Many employees are told they’ve been “made redundant,” only to realise later that it doesn’t quite stack up. The word sounds final, but it’s not always the end of the road—especially if your employer didn’t explore other roles you could’ve reasonably done. In some cases, what’s called a redundancy might still be challenged as an unfair dismissal.
Under the Fair Work Act, a dismissal is only a genuine redundancy if:
The employer no longer requires the person’s job to be done by anyone.
The employer complied with any relevant consultation obligation under an award or agreement.
Most importantly—the employer considered whether it would have been reasonable to redeploy the person elsewhere within the business or associated entities.
It’s that third part where employers often fall short. A lot of redundancy decisions unravel when employers fail to properly investigate whether another position was available. You don’t have to be a perfect match for a role—what matters is whether it would have been reasonable to offer it, taking into account your skills, experience, and willingness to adapt. The Fair Work Commission has repeatedly found that overlooking potential redeployment options can void a redundancy defence. It’s not enough for employers to assume you wouldn’t be interested or wouldn’t accept less pay. That’s a decision for you—not them.
Cases Where Redeployment May Have Made the Difference
In one matter, an employer failed to offer a position with its related company overseas, assuming the employee wouldn’t accept this. The employee testified that they would’ve considered it, even just for a few months. That was enough to find that the redundancy wasn’t genuine.
Another employer limited its redeployment search to just one state, despite operating across the country. The Commission found it unreasonable, since the company could’ve looked nationwide.
In another cases, employers who posted new jobs during restructures then gave those roles to someone else, even though the retrenched employee was capable of them, were also likely found not to be genuine redundancies.
When Employers Try to Avoid Their Duties
The law doesn’t require employers to create new positions out of thin air, but it does require them to identify any available roles you could reasonably perform. That includes casual positions, less senior roles, or even roles involving relocation—if it would still be reasonable in the circumstances.
It’s not enough for an employer to say, “We didn’t think you’d want it,” or, “You never asked.” Employees can’t ask about roles they don’t know exist. The responsibility to explore and offer redeployment options sits squarely with the employer—not with the worker being made redundant.
However, in some cases, the Commission has sided with employers. If an employee is offered a reasonable alternative and they decline, the redundancy may still be considered genuine. But the employer needs to show that offer was actually made and that the process was fair.
Key Lessons
Don’t assume your redundancy is legally airtight. Just because the word was used doesn’t mean the dismissal was valid.
Ask questions. Were other jobs available? Were you consulted about them? Were new roles advertised internally?
Look for red flags. Did your employer assume you wouldn’t relocate, take lower pay, or work different hours without asking you?
Know your rights. You may still be eligible to lodge an unfair dismissal claim if your redundancy wasn’t genuine.
Redundancy is a legal concept. If your job was replaced, reshuffled, or re-advertised in any form you could’ve filled, the law may be on your side. At Workplace Justice, we help employees challenge unfair redundancies. If you’ve been retrenched and something doesn’t feel right, don’t wait. Let’s talk.
