Is your redundancy genuine?

A redundancy is only genuine if your job no longer needs doing by anyone, your employer followed the consultation rules and redeployment wasn't reasonable. What to check, and the 21 day deadline if it wasn't.

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A redundancy is genuine when your employer no longer needs anyone to do your job because of changes in the business, and it followed any consultation rules in your award or enterprise agreement. It isn't genuine if it would have been reasonable to move you into another job in the business or a related business. If it isn't genuine, you may be able to claim unfair dismissal, and you have 21 days to apply.

What is a redundancy?

The Fair Work Ombudsman says redundancy happens when an employer doesn't need an employee's job to be done by anyone, or becomes insolvent or bankrupt. It can follow new technology, a slowdown in sales or production, a closure, a move interstate or overseas, or a restructure, including after a merger or takeover.

What makes a redundancy genuine?

Under section 389 of the Fair Work Act, a dismissal is a case of genuine redundancy when both of these are true:

  • your employer no longer requires your job to be performed by anyone because of changes in the operational requirements of the business
  • your employer complied with any obligation in an applicable award or enterprise agreement to consult about the redundancy.

It is not a genuine redundancy if it would have been reasonable in all the circumstances to redeploy you within your employer's business, or the business of an associated entity.

If the redundancy is genuine, you can't get an unfair dismissal remedy. If your employer proves the section 389 test was met, the Fair Work Commission can't hear the claim. If it wasn't met, the Commission goes on to decide whether the dismissal was unfair.

The Fair Work Ombudsman can't decide whether your redundancy is genuine. It suggests getting legal advice.

What if your job is readvertised?

A dismissal isn't a genuine redundancy if your employer still needs your job to be done by someone. If the same job is advertised after you leave, that goes straight to the first part of the test. Neither the Fair Work Ombudsman nor the Commission gives a percentage of changed duties as part of the test.

What consultation does your employer have to do?

All awards and agreements have a consultation process for major workplace changes likely to have significant effects on employees, which may include redundancies. Once the decision is made, the employer must, as soon as possible:

  • tell affected employees and their representatives about the proposed changes
  • give them all relevant information in writing, including the expected effects
  • discuss the changes, their likely effects and ways to reduce the effects on employees
  • consider any ideas or suggestions employees or their representatives raise.

An employer considering 15 or more redundancies must notify Services Australia in writing before the employees are made redundant. It must also notify or consult a union if at least one affected employee is a member.

What is reasonable redeployment?

Redeployment means giving you another job instead of making you redundant. The test covers your employer's whole business and its associated entities, which are businesses connected to each other, for example when one owns or controls the other.

What can you do if you think it wasn't genuine?

You can apply to the Fair Work Commission for unfair dismissal within 21 days of your dismissal. To be eligible you must:

  • have worked for the employer for at least 6 months, or 12 months at a small business with fewer than 15 employees
  • be covered by the national workplace relations system
  • be covered by an award or enterprise agreement, or earn less than the high income threshold, which is $190,100 from 1 July 2026.

If you think the reason for the redundancy breaks the general protections laws, for example because you made a complaint about your pay, you may be able to apply for a general protections dismissal instead. That application is also due within 21 days, counted from the day after the dismissal.

If you are made redundant, you may be owed redundancy pay based on your length of service. Our guide to redundancy pay in Australia has the table, and our guide to unfair dismissal payouts covers what a claim can lead to.

What did TAC readers tell us?

We asked our community whether an employer can call a role unchanged after a restructure, and what happened when people were moved or let go soon after starting a job.

The most repeated answer was a rule that a role changing by more than 20% from its position description counts as a new role.

Generally role change of more than 20-30% per job description would be considered restructuring/redundancy of previous role

Hi please don't rely on magic percentages, sometimes it can be just one element of a role but a significant one and people always think it's about a percentage. Also yes, any redundancy should be based both on the PD and the actual responsibilities performed

Anon HR here - remit and scope of role play as much of an influence if not more than title and pay. There is no hard and fast line of change but if the role duties are substantially different to previous duties (eg. Team leadership removed, strategy removed etc) or are added then there is cause to ask for consultation on role change.

This sounds like they are doing it to avoid paying redundancy pay.

...Happened to myself and a colleague but just outside the 3 month mark. No suitable roles for ‘redeployment’ so both made redundant.

This is general information, not legal advice. If you have been made redundant and think it wasn't genuine, get advice quickly because of the 21 day deadline.

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