A recent Fair Work Commission decision has highlighted the importance of considering all relevant and reasonable redeployment options when making an employee redundant.
In the matter of Tyndale v Freerange Future Pty Ltd, the employer was found to have unfairly dismissed an employee, where they had failed to consider relevant redeployment options when making Ms Sonia Tyndale’s role redundant. This failure led to an order for Freerange Future to pay their former employee Ms Tyndale $15,384.40 in compensation for her unfair dismissal.
Background
Ms Tyndale was employed as an Account Manager for Freerange Future, a creative marketing agency, and was dismissed on 31 January 2025 for the reason of redundancy. At the time of Ms Tyndale’s dismissal, Freerange Future was facing significant financial losses and Ms Tyndale’s dismissal was part of a restructure to cut costs.
A crucial detail in the matter was the availability of a Senior Brand Design role which remained available within Freerange at the time of Ms Tyndale’s dismissal, though this was not offered to Ms Tyndale as a redeployment option.
The Commission considered two key points in relation to Ms Tyndale’s dismissal, namely:
- Whether the dismissal was a genuine redundancy under s.389 of the Fair Work Act 2009 (the ‘Act’); and
- Whether the dismissal was harsh, unjust or unreasonable under s.387 of the Act.
Ultimately, the Commission found that Freerange Future had unfairly dismissed Ms Tyndale as a result of their failure to genuinely consider redeployment options which were available, despite their legitimate operational and financial reasons for the redundancy, and that the dismissal was harsh, unjust and/or unreasonable.
Was it a ‘Genuine Redundancy’?
Commissioner Platt considered the nature of Ms Tyndale’s employment by Freerange Future in its assessment of whether Ms Tyndale’s dismissal could be characterised as a genuine redundancy. The Act sets out three criteria that must be satisfied to constitute a genuine redundancy:
- The employer no longer needs the job to be performed due to operational changes;
- The employer has complied with consultation obligations as stipulated in the relevant modern award or enterprise agreement;
- There are no other reasonable redeployment opportunities available within the firm.
Commissioner Platt found that the first element was satisfied, as Freerange Future was experiencing significant financial losses, necessitating operational changes including Ms Tyndale’s redundancy, which was a reasonable cost-saving decision for their survival as a small enterprise.
As part of their response to Ms Tyndale’s application, Freerange Future contested the claim that they had failed to meet the requisite consultation obligations under the Clerks – Private Sector Award 2020. Regarding this matter, the Commission ruled in favour of the employer, considering that the type of work performed by Ms Tyndale did not fall within any of the relevant awards.
It was the third criterion regarding redeployment that was largely problematic for Freerange Future’s position before the Commission.
Could the employee be redeployed within the business?
In assessing the redundancy, a key determinant was whether it would have been reasonable for Freerange Future to redeploy Ms Tyndale within their agency, including to the available Senior Brand Designer role. Whether the option to redeploy Ms Tyndale was reasonable rests on an assessment of factors including the nature of the roles available, the qualifications and experience of the employee, and whether any skill gaps could be addressed through reasonable retraining.
Freerange Future stated that Ms Tyndale’s qualifications and skills were incompatible with the available role and their financial position did not allow them to invest in the required training for Ms Tyndale to be suitable to fill that role.
Ms Tyndale’s position was that she was suitably qualified for the alternative role, with an ‘Advanced Diploma in Graphic Design and Advertising and extensive experience in graphic design, design coordination and client facing communication’. Further, Ms Tyndale had worked in a similar capacity to the available position in her previous employment and held additional skills beyond the requirement for her role as Account Manager, which made her suitable for the Senior Brand Designer role. Ironically, yet advantageous to Ms Tyndale’s position, Mr Crowther of Freerange Future had provided an ‘effusive reference’ to Ms Tyndale, praising her client management experience and collaborative abilities, both core components in the description of the Senior Brand Designer role.
Commissioner Platt found Freerange Future to have prematurely excluded Ms Tyndale from consideration of the role; that Ms Tyndale held the majority of skills required to perform the role; and that it would have been reasonable to redeploy Ms Tyndale to the role of Senior Brand Designer. For these reasons, Commissioner Platt found that Freerange Future did not satisfy this requirement.
Was the dismissal harsh, unjust or unreasonable?
After finding that Ms Tyndale had indeed been dismissed, Commissioner Platt examined and found that the dismissal was not a case of genuine redundancy and was consequently harsh, unjust and unreasonable. Of the assessable criteria, it was Freerange Future’s failure to consider and redeploy Ms Tyndale that made it not a genuine redundancy, and ultimately an unfair dismissal. Further, Commissioner Platt considered the fact that Mr Crowther admitted that he had already made a decision prior to the consultation meeting and did not appropriately consider Ms Tyndale’s qualifications or skillset, making it unjust and ultimately unfair.
Key take away for employers
Regardless of the financial position, when making an employee redundant, an employer must first follow a proper and fair procedure, including a reasonable assessment of redeployment opportunities available. In making this assessment, employers should consider the employee’s existing skillset and prior experience holistically, as well as their capacity for reasonable retraining against all available roles.
At Coleman Greig, our Employment Law team has extensive experience advising employers on business restructures, including redundancies. If you are facing a similar situation, we can assist at every stage to help ensure your process is fair, compliant and defensible.
