Genuine redundancy: a complete bar, not a factor
If a dismissal meets the statutory test for genuine redundancy, it cannot be pursued as an unfair dismissal claim at all, regardless of how it was handled.
Genuine redundancy works differently from every other issue on this site. It is not weighed alongside the harsh, unjust or unreasonable factors; it is a jurisdictional bar. Under section 389 of the Fair Work Act, the Fair Work Commission's guidance is direct: "An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy."
What makes a redundancy genuine
- The employer no longer required the person's job to be performed by anyone, because of changes in the operational requirements of the employer's enterprise.
- The employer complied with any consultation obligation imposed by an applicable modern award or enterprise agreement.
- It would not have been reasonable in the circumstances to redeploy the person within the employer's enterprise, or the enterprise of an associated entity.
If all three hold, an employer can raise a jurisdictional objection and the unfair dismissal application does not proceed, whatever else might be said about how considerately the redundancy was carried out. A redundancy that fails the redeployment test, or that skipped a required consultation step, is not a genuine redundancy in the Commission's terms and does not have this bar. This site has not sourced whether a badly handled but genuine redundancy could support a different kind of claim, such as a general protections application, and does not state that it does.