As usual in employment law, there is no definitive answer as each case will depend on all of the circumstances.

However, as a recent judgment of the Fair Work Commission[1] has confirmed, a person’s job may be redundant even if other employees continue to perform some of the duties of that job.

In this case, the Deputy President helpfully extracted[2] the following propositions from the relevant authorities:

  •  “An employee may still be redundant when aspects or parts of the employee’s duties are still performed by other employees;
  •  The test is whether the job survives a restructure of the enterprise, not whether some of the duties have survived and continue to be performed by others, or others who have been employed to perform those duties;
  • It is the employee’s role or job that is no longer required to be performed, not necessarily their duties, which is relevant.”

Employers considering a restructure of their employment arrangements should also be aware of the requirements for a “genuine redundancy” under the Fair Work Act 2009[3], namely:

  • The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of its enterprise;
  • The employer has complied with any Award obligation to consult with the employee about a redundancy; and
  • Redeployment within the employer’s enterprise (or the enterprise of an associated entity) is not reasonably available.

Employers should ensure that each of these three requirements has been considered and met before terminating the employment of an employee on the ground of redundancy.

[Note: This article is intended to highlight current issues and does not constitute legal advice.]

[1] Cook v Mudgee Law Company Pty Ltd t/a Yeates Betts Solicitors [2019] FWC 30

[2] Paragraph 71

[3] Section 389