A Change in Duties & Qualifications For a Position Can Equate to Redundancy
Mackay Taxi Holdings Pty Ltd trading as Mackay Whitsunday Taxis-v-Wilson  FWCFB 1043
A Full Bench of the Fair Work Commission has considered the issue of a position being changed to incorporate additional qualifications and duties. The new job incorporated about 70% of the former role which was made redundant, however the Court found that the former position was genuinely made redundant in any case.
The employer a Taxi Company, Mackay Holdings Pty Ltd, made an administrative position occupied by a bookkeeper redundant and restructured to create a new administrative position which required Certificate IV qualifications. Whilst the bookeeper’s role was 70% of the new position's duties the Full Bench of Deputy President Richards, Commissioner Spencer and Commissioner Simpson, overturned the decision of Commissioner Booth, that the redundancy was not a genuine redundancy after the bookkeeper was not successful in applying for the new position.
In her decision Commissioner Booth said that the addition of the qualification and other duties were a variation to "an existing and continuing role" and could not be a genuine redundancy.
The Full bench determined that the addition of the qualification was necessary and was a result of higher level work and responsibilities, therefore the variation was a real operational change due to changed circumstances in the business, the Full bench said "Whether the original duties or tasks continue to be required to be performed is not necessarily relevant: it is the operationally-driven changes to the position that need to be made out" and that, "The operational objective on the part of the employer to rely on the qualified services of a bookkeeper to improve the 'capacity of the administration to function at a higher level' brought about a real and genuine change to the position as it had been performed by the bookkeeper. This is the kind of change that ordinarily would give rise to a redundancy (where the incumbent does not possess the qualifications to give effect to the operational objective)."
The full bench said the new job was not the same as the old one, and therefore the old job was redundant.
The Full bench then referred the bookkeeper's unfair dismissal application to Commissioner Simpson to determine whether she could have been reasonably redeployed under Section 389(2), this was due to Commissioner Booth’s decision in the matter and the fact that she had not been required to decide that issue.
The case emphasises that the comparison of a job description to determine whether a position is genuinely redundant is a finely balanced process. Whether a job is a new one or a variation to an existing one, can be a tricky balancing act. Read more about our employment law services.