Corporate restructuring leads to outsourcing and claims of unfair dismissal
The Fair Work Commission (FWC) recently dealt with a case involving a software developer who challenged her dismissal following a corporate restructuring initiative. The worker claimed she was unfairly dismissed after her position was made redundant and her duties were redistributed.
In this matter, the worker argued that her role continued to exist within the organisation despite the redundancy. She claimed the consultation process was merely perfunctory and that suitable redeployment opportunities were overlooked. The worker also maintained that she had repeatedly requested her position be reclassified to reflect expanded responsibilities.
The case raised important questions about what constitutes a genuine redundancy, the standards for meaningful consultation, and employers' obligations regarding redeployment options.
Genuine redundancy in corporate restructuring
The employer, an ASX-listed travel management company, implemented Project Atlas which involved streamlining and outsourcing parts of its internal support services to a third-party provider called WNS in India.
The project was publicly announced in November 2023 and started in January 2024, affecting several business functions including Finance, Data, Information and Communications Technology (ICT) and Security.
On 22 November 2024, the worker was informed that her position as a .NET Software Developer was no longer required. Following consultation meetings, her employment ended on 5 December 2024, with five weeks' pay in lieu of notice and seven weeks' redundancy pay.
The worker argued that her role involved handling sensitive Whole-of-Australian-Government (WoAG) data that could not be transferred overseas without significant risk due to strict confidentiality and Australian data sovereignty obligations.
The Global Chief Information Officer testified that part of the tasks were outsourced to India, some of the tasks were redistributed to multiple existing people within the team as maintenance tasks, and some were discontinued as they were no longer required.
The FWC concluded: it is sufficiently clear that [the employer] no longer required [the worker's] job to be performed by anyone because of changes in the operational requirements of the enterprise.
Consultation process in redundancy situations
The Professional Employees Award 2020 required the employer to consult with employees about redundancies. The employer held a group meeting on 18 September 2024, with the ANZ Chief Executive Officer explaining that organisational restructuring would affect several functions including the Global Data Management team.
On 25 November 2024, an individual consultation meeting took place where the worker was told her position was at risk of redundancy. She was asked to provide feedback by 26 November. The worker later claimed she was on sick leave during part of this consultation period, though the employer's evidence showed she had already provided feedback before going on leave.
The worker argued that the consultation was merely a procedural formality and not a meaningful dialogue, claiming it was superficial and predetermined as her first consultation happened after positions had already been advertised.
Despite these objections, the FWC stated: I am satisfied from the evidence that [the employer] has complied with any obligation in the Award to consult about the redundancy.
Redeployment opportunities in redundancy cases
A key issue was whether redeployment would have been reasonable. The worker claimed she had repeatedly requested reclassification of her role since June 2024 to reflect her expanded responsibilities. She pointed to a vacant Senior Backend .NET Engineer position that she believed matched her skills.
The worker argued this vacant role was essentially the same work she had been doing, suggesting her job or a substantially similar job, remained available but was relabelled to avoid redeployment obligations.
The employer maintained that this vacant role required higher-level skills and would have been a promotion rather than a lateral move. They said the position was in a different team (ANZ Technology) while the worker had been in a Global role.
Evidence showed the advertised position offered a salary between $150,000 to $160,000, more than $30,000 above the worker's salary of $130,590.72. The Commission noted: This supports [the employer's] case that the role was at a higher level of skill and responsibility than [the worker's] role.
When asked why she didn't apply for the position, the worker said she had tried to get the employer to redeploy her to the role, and when they didn't, she believed it was hopeless.
FWC's determination on redundancy
After examining all evidence, the Commission ruled this was a case of genuine redundancy under section 389 of the Fair Work Act 2009. The FWC was satisfied that due to operational changes [the worker's] role was no longer required, [the employer] has complied with its consultation obligations under the Award, and it did not have any other roles that it would have been reasonable to redeploy [the worker] into.
The Commission accepted that the employer had satisfied all elements required for a genuine redundancy, noting that the end of the worker's employment was not due to any capacity or conduct of [the worker], but as the result of a genuine redundancy process which was undertaken fairly.
As a result, the application was dismissed as the FWC concluded it did not have jurisdiction to hear the unfair dismissal claim.
https://www.hcamag.com/au/specialisation/employment-law/outsourcing-to-overseas-provider-is-it-a-valid-reason-for-redundancy/532614
