Contains issues that may form the basis of a jurisdictional issue
See Fair Work Act s.389
An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy.
A dismissal is a case of genuine redundancy when:
- the employer no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, AND
- the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.
A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within:
- the employer's enterprise, or
- the enterprise of an associated entity of the employer.
If an employer believes that an employee's dismissal was a genuine redundancy, and the employee has made an application for an unfair dismissal remedy, the employer may make a jurisdictional objection to that application. If an employer can prove that the requirements of s.389 of the Fair Work Act have been met, the Commission will have no jurisdiction to hear the unfair dismissal claim. However, if the requirements of s.389 of the Fair Work Act have not been met, the Commission must determine if the dismissal was unfair.