Employees given ammunition to challenge redundancy

A recent decision of the Full Bench of the Fair Work Commission (the Commission) confirms that when considering if a redundancy was a genuine redundancy, the Commission may make an order requiring an employer to produce documents evidencing that there were no redeployment opportunities with the employer or an associated entity of the employer.

Background

Six employees lodged unfair dismissal claims following the termination of their employment for reasons of redundancy from Clermont Coal Operations Pty Ltd (Clermont).  The employees through the union, challenged the dismissals on the basis they were not genuine redundancies under the Fair Work Act 2009 (Cth) (the Act), as it was reasonable in all the circumstances to redeploy the employees within Clermont or an associated entity of Clermont, where contractors or the employees of contractors worked.

The union sought orders that Clermont and a number of its associated entities produce documents relating to the engagement of contractors and employees of contractors.  

The application was challenged by Clermont and its associated entities for reasons which included that:

• the categories of work performed by contractors was not relevant to the determination whether redeployment opportunities were available;
• the request amounted to a "fishing expedition"; and
• the order would require the production of confidential documents and would reveal the internal deliberations as to the industrial strategy or policy of the entities .

First instance

At first instance, Deputy President Gooley found that Clermont was required to produce the documents as:

• there may be circumstances when the engagement of contractors would be relevant to the redeployment obligations under the Act. For example if the redeployment obligations arose before the contractors were engaged;  
• the "evidence in relation to both the redeployment opportunities and the reasonableness of redeployment is generally in the possession of the employer and its associated entities";
• if there is any confidentiality to the documents, it can be addressed once the documents are produced; and 
• the documents would not reveal the "internal deliberations as to the industrial strategy or policy of the entities."

Appeal

The Full Bench supported Deputy President Gooley's findings and further found that:

• the position "might be different if a party seeks the production of documents to support a case which is not reasonably arguable";
• Deputy President Gooley had the power to order the production of documents; 
• there was no evidence that the order for the production of documents was oppressive; and
• the orders limiting access after the documents are produced could be made if the documents would disclose "internal deliberations as to industrial strategy and policy".

Lessons

In some circumstances, employers may be required to produce documents if there is some evidence that the employer has impeded redeployment opportunities by recently engaging contractors or other employees. 

If an employee successfully argues that redeployment opportunities were available but not offered, the employee will have access to the unfair dismissal laws as one of the elements for satisfying a genuine redundancy has not been met. 

If you would like more information, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.