Home | Member Updates | Reconsider re-advertising "redundant" roles
Summary: The Fair Work Commission has warned employers against re-advertising "redundant" roles, following their recent decision to grant an extension to an unfairly dismissed employee.
The Bonita Lineburg Case
An extension of time has been granted to an employee who claims she was unfairly dismissed by her former employer following the declaration of her role as redundant.
In the recent case of Bonita Lineburg v Act Accountants T/A Accumul8 Accountants, the employee (Ms Lineburg) was declared redundant by her former employer (Accumul8). Whilst Ms Lineburg had doubts as to whether her redundancy was genuine, she didn’t bring an unfair dismissal claim as she didn’t feel certain. 21 days passed, and Ms Lineburg’s opportunity to file an unfair dismissal claim application passed.
Sometime later, Ms Lineburg discovered a job advertisement posted by Accumul8 on Seek. The advertisement was, essentially, for the same role she had previously held, which Accumul8 had declared redundant.
Whilst Ms Lineburg felt she had, on the basis of the Seek advertisement, good grounds to claim she was unfairly dismissed (because her redundancy was not genuine), she was out of time. 21 days had passed: she could not file an unfair dismissal application without an extension.
The Fair Work Commission granted Ms Lineburg an extension, allowing her to file an unfair dismissal application (on grounds of her redundancy not being genuine), having regard to the timing of the posting the advertisement on Seek.
If a employee is declared redundant, and they can establish their redundancy was not genuine, they may be able to claim they were unfairly dismissed. In such a case, they would start by filing an unfair dismissal application.
In most cases, employees must file an unfair dismissal application within 21 days of termination. If they file after this time, their application will usually be rejected.
Does this mean you can declare a role redundant, wait 21 days, and then re-advertise the role with no risk of an unfair dismissal application being brought against you? The Fair Work Commission says no.
Employee rights
If a employee is declared redundant, and they can establish their redundancy was not genuine, they may be able to claim they were unfairly dismissed. In such a case, they would start by filing an unfair dismissal application.
In most cases, employees must file an unfair dismissal application within 21 days of termination. If they file after this time, their application will usually be rejected.
Does this mean you can declare a role redundant, wait 21 days, and then re-advertise the role with no risk of an unfair dismissal application being brought against you? The Fair Work Commission says no.
Key takeaway and further reading
So the key takeaway stands: only a genuine redundancy will suffice. Ostensible 'redundancy' is not a simple way out of a difficult workplace scenario. Waiting for a filing deadline to pass is cheeky, and it won't save you.
The substantive issue of whether Ms Lineburg's redundancy was genuine is yet to be determined. As yet, Ms Lineburg has simply been granted an extension of time to file her application.
You can read the extension of time case here