A case of genuine redundancy when your previous duties are being performed by another employee

Previous employees considering to file for an application of unfair dismissal should take note of a recent
decision from the FWC.

In the recent case decided by the Fair Work Commission (the “FWC”) entitled “Mr. Omar Khaddaj v. ACS
Property Services, [2020] FWC 5952, it was emphasized that if there is no longer any function or duty to
be performed by an employee, even after the company’s re-organization, his or her position becomes
redundant and thus, a valid cause of termination.

Background

ACS Property Services Terminated the employment of Mr. Omar Khaddaj on the ground of redundancy
citing that as a result of the company’s re-organization due to drastic effects of COVID-19 pandemic, the
position of Marketing Coordinator is no longer required. In contrast, Mr. Khaddaj argued that his previous
duties are still essential to the company and hence, he filed an application for unfair dismissal.

Findings

After careful review of the facts and evidence presented by both parties, FWC found that the termination
of Mr. Omar Khaddaj is a valid termination of employment on the ground of genuine redundancy pursuant
to Section 389 of the Fair Work Act 2009.

While Mr. Khaddaj argues that his duties as Marketing Coordinator are still necessary for the company
since the latter continued promotion of the company’s business through online social media and website
campaigns. However, it was clearly explained, as supported by evidence, that the duties and
responsibilities formerly assigned to Mr. Khaddaj have survived his departure after the company
reallocated the tasks to other staff and to an external PR consultancy.

The FWC referred to the decision provided in Ulan case which stated that an employee can be made
redundant even if any component of their job still has to be done by another person. What is critical is to
see whether the former role holder still has any tasks to do after the reorganization. That person's
employment becomes unnecessary if there is no longer any task or responsibility that needs to be
completed by them.

Takeaways

• Even while the firing of an employee may not be a true redundancy specific tasks, obligations, and
responsibilities carried out by that other employees are performing the duties of an employee.
• An employer may no longer require a job to be performed by anyone because of changes in the
operational requirements of its enterprise.