The Fair Work Commission (FWC) has again reminded employers that business restructures don’t automatically guarantee a genuine redundancy defence, particularly when alternative roles exist within the organisation.

In a recent decision involving a landscaping company and its former Head of Learning and Development, the Commission found the dismissal was not a genuine redundancy because the company failed to offer redeployment to a more junior position, even though the worker was overqualified and the role represented a significant step down.

What Happened

The company eliminated the senior learning and development role as part of a strategic restructure following leadership changes in late 2024.

While the Commission accepted that the role itself was no longer required due to legitimate operational changes, a separate Learning and Development Facilitator position was advertised the day before the worker’s dismissal took effect.

This facilitator role:

  • Paid 15–30% less than the former position ($120,000–$140,000 versus $165,000);
  • Focused on operational delivery rather than strategy; and
  • Would have previously reported to the redundant role.

The company argued redeployment was unreasonable given the worker’s seniority, overqualification, and likelihood of becoming disengaged. The Commission disagreed.

FWC’s Decision

The Commission found the redundancy failed to meet the test of a “genuine redundancy” under section 389 of the Fair Work Act 2009 (Cth), because the employer did not offer reasonable redeployment.

Key findings included:

  • The job elimination was legitimate, satisfying the first limb of the test.
  • A suitable alternative position was available at the time of termination.
  • The worker had the skills and experience to perform the junior role, even if overqualified.
  • Employer preference for a “better suited” candidate did not outweigh their legal obligation to offer redeployment.

As a result, the dismissal was not a case of genuine redundancy, and the worker was permitted to proceed with an unfair dismissal claim.

Why It Matters

This decision reinforces that employers must take redeployment obligations seriously, even in circumstances where the alternative role:

  • Represents a demotion or pay cut;
  • Is operational rather than strategic; or
  • Doesn’t seem like a good cultural or motivational fit.

The Commission made it clear that: “Employer preferences about the ideal candidate cannot override redeployment obligations under the Act.”

Even legitimate business concerns, such as overqualification, engagement risk, or retention do not justify refusing redeployment if the employee is otherwise capable of performing the available work.

Lessons for Employers

  1. Check all redeployment options before termination and document all roles that are vacant or soon to be vacant, even those at lower levels or in other divisions.
  2. Offer the role, don’t assume the employee will decline. It’s not enough to assume a senior employee “wouldn’t want” a junior position. The offer must be made.
  3. Don’t rely solely on business preference. Redeployment assessments are about what’s reasonable, not what’s ideal.
  4. Communicate and document carefully and keep written records showing the consideration of redeployment options and any discussions with the employee.
  5. Seek advice early. Restructures involving senior or specialist roles often carry higher unfair dismissal risks. A short consultation with CGC can save significant cost and disruption later.

Final Thought

Even when a business restructure is legitimate, a redundancy won’t be considered “genuine” if the employer overlooks reasonable redeployment opportunities, no matter how “overqualified” the displaced employee might be.

For HR and business leaders, this case serves as a timely reminder: Redundancy is about the role not the person, but redeployment is about the opportunity not the preference.

If you are unsure about how this impacts your processes, reach out to our team for support and guidance.