Commercial Law Q&A

Commercial Law Q&A

IS THERE A TIME YOU HAVE TO WAIT AFTER YOU MAKE A PERSON REDUNDANT BEFORE YOU CAN RE ADVERTISE FOR THE SAME POSITION?

A recent case in the Fair Work Commission considered whether there was any time limit between making a person’s position redundant and then re-advertising that position.

In this case United Petroleum, which operates numerous service stations, experienced a significant downturn in its sales of fuel and its other associated retail operations in April 2020 as a consequence of the pandemic. This led to them making a decision to restructure their retail management which included making the applicant’s position, and other positions, redundant.

On 16 May 2020 the company posted an ad for the job on LinkedIn with the same position description is the applicant’s job.

The Commission was satisfied that the company had made the decision to make the positions of the applicant and a number of other persons in the organisation redundant because of changes in its operational requirements. The company gave evidence that due to the drop in petrol and retail sales in April 2020 there was significant pressure on the business to reduce its expenses and a large number of employees were either stood down completely or partially because there wasn’t enough work.

There was further evidence that once the restrictions were relaxed, after the applicant’s termination, of the company’s sales performance improved dramatically which meant the company had to hire new employees. The Commission accepted that at the time of the applicant’s dismissal there were no available positions within the company to redeploy the applicant and therefore the dismissal was a genuine redundancy.

The consequence of the decision is that there is no statutory or recommended time limit for rehiring for the same position after a redundancy. The real test is determining whether the original redundancy was genuine and if there has been a change in circumstances which has resulted in the need to rehire for the same position. From a practical point of view the longer the period between the redundancy and the re-advertising of the job will reduce the risk of it being suggested that the redundancy was not genuine.

Are you looking at an issue with a redundancy? Contact our Commercial Law Team at Solari and Stock Miranda 85252 2700 or click here to request an appointment.

Photo by Clem Onojeghuo on Unsplash

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