The test asks – Is the position redundant?; Not – Are the tasks and duties still being done?

The South Eastern Division of the Royal Flying Doctor Service of Australia (the respondent) terminated the employment of Ms Lois O’Grady (the applicant) claiming that it was due to a restructure of the Launceston Base Operations which eventuated in the applicant’s position being made redundant.

The Respondent objected to the unfair dismissal case before Fair Work Australia (Lois Joy O’Grady v Royal Flying Doctor Service of Australia (South Eastern Division)) being heard based on the termination being due to redundancy; and therefore sought that determination first.

There are four sections of the respondent’s business and two fund raising entities, with each section being a completely autonomous legal entity. The applicant was initially employed in the Tasmanian section from 2001 until taking up her role as Base Administration Manager with South Eastern Section in 2006. The applicant still however continued to provide secretarial and marketing assistance to the Tasmanian Section which is a fundraising entity. The applicant claimed that in late 2003 she took on the position of Contract Manager/Base Manager and that in 2005 her role had changed to managing the contract more than working for the Tasmanian Section and she was subsequently employed by the South-Eastern Section.

The Respondent submitted that in late 2008, because of issues with a significant contract with the Commonwealth Government to supply enhanced medical services, there was a need to create a full-time high level management position based in Launceston which would require a high level of skill and strategic management capabilities. The new position was titled “Base Manager”.

The applicant submitted that she became aware that the decision to make her position redundant was made in November 2008, and the respondent submitted that the decision about the proposed position was not made until April/May 2009. It was the applicant’s argument that her position was not redundant and that she had been replaced by someone with a larger skill set.

On May 19, 2010 the applicant was called into a meeting and she claimed she thought it was for the purpose of annual performance assessment. The meeting was however to inform her of the redundancy of her role and she was given 3 months notice - with a requirement to work out the notice period. The applicant submitted that there was no discussion about redeployment.

The Respondent submitted that the applicant was not responsible for making management decisions. It was further submitted that the applicant was informed in the May 19 meeting that there were no options for redeployment as there were no administrative or other suitable positions available within the section.

The Respondent listed the differences between the applicant’s role and the new role which included some completely new functions being added. The respondent determined that the applicant did not have the skills required to perform the new role.

Deputy President (DP) Leary considered the relevant sections of the Fair Work Act 2009 in relation to what unfair dismissal is and the meaning of genuine redundancy. DP Leary found that the test required to be undertaken was whether the position the applicant held was still in existence - not whether the tasks and duties are still being done.

DP Leary found that the restructure as a response to the Government Contract issues would be appropriate and efficient, and that the new position of Base Manager was different to the applicant’s position of Base Administration Manager because:

· new duties were added to the role that were not previously performed by anyone;

· the role included some functions performed by other employees; and

· it required a much higher skill set.

DP Leary found in favour of the respondent in determining that the applicant’s termination was due to a genuine redundancy. The application was dismissed.