Did you know the Fair Work Commission (FWC) may still order a redundant employee to be reinstated with their former employer even if their position no longer exists?

In the recent case of Buttar v PFD Food Services Pty Ltd [2017] FWC 4409; [2017] FWC 4918, the FWC ordered that a worker who had been unfairly dismissed when his position was made redundant be reinstated despite his former job no longer existing.

Notwithstanding the employer claiming that the employment relationship had been "broken beyond repair", Deputy President Anderson ordered it to reinstate the employee to an equivalent position on equivalent conditions to those he received immediately before he was dismissed on the grounds of redundancy.

While the employer had a genuine operational reason to restructure its Adelaide operations and make the supervisor's position redundant, the FWC found that the employer failed "to take reasonable steps to redeploy [the supervisor] which materially contributed to the dismissal being harsh, unjust or unreasonable". As the employer notified the supervisor he was being made redundant on the day it took effect, the FWC found the employer failed to meet the statutory requirement of consultation for a redundancy or properly consider redeployment.

In ordering the reinstatement of the supervisor, Deputy President Anderson said "however that an employer asserts that trust and confidence has been eroded to such an extent that the relationship is irretrievable is not, in itself, a sufficient ground on which to conclude that reinstatement is inappropriate." Based on an objective consideration of the facts, including the employee's diligence and capability and his unblemished employment record, reinstatement to a similar position was considered an appropriate remedy.

This case serves as a reminder for employers to ensure genuine communication and consultation with employees occurs when undertaking redundancies and to consider all redeployment options within the employing entity and associated entities, including lower level roles.