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When Your Own HR Policy Becomes Your Worst Enemy

Fair Work Friday: Triple Zero Victoria’s Redundancy Defence Fails

Welcome to Fair Work Friday! I must admit I’m learning as I hope you are from these recent decisions. So let’s get into it.

This one is a good reminder for HR practitioners who have policies that actually trap you rather than assist and protect organisations and their employees.

The Case:

Recently, the Fair Work Commission (FWC) rejected a genuine redundancy defence from Triple Zero Victoria. While there was a legitimate operational reason to restructure, the FWC ruled the redundancy was not genuine because the People and Culture team failed to follow their own internal Redundancy and Redeployment (R&R) policy.

They didn’t assign a case manager, didn’t conduct a skills assessment, and failed to meet with the employee in a timely manner to discuss redeployment opportunities. Deputy President Ian Masson found that the organisation “singularly failed” the employee by not following the significant elements of the policy they had in place.

The 3 Pillars of a Genuine Redundancy

To be protected from an unfair dismissal claim, a redundancy must meet all three criteria under Section 389 of the Fair Work Act:

  1. Operational Change: The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
  2. Consultation: The employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
  3. Redeployment: It would not have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.

The Bloom HR Takeaway – Less is More

At Bloom HR, our advice is often counter-intuitive. We recommend not having reams of policy that stranglehold you and the organisation. These policies often don’t enable you to ensure the process actually meets the needs of the business or the person affected, and if you are not following your own policy, your organisation will be affected.

A rigid policy locks you into a process where the moment you deviate, you create a legal opening. Instead, we suggest sticking to the consultation requirements outlined in the relevant Modern Award or the Fair Work Guidelines. Don’t lock yourself down to a process that might not meet individual circumstances. Managing on a case-by-case basis allows you to be flexible, fair, and work with the needs of the employee. Don’t set yourself up to fail.

Is your HR handbook full of legal traps you have set for yourself? Let’s strip back the complexity and focus on what works.

Schedule a time for a chat, call us on +61 2 8144 4449 or email us at hello@bloomhr.com.au

FairWorkFriday #HumanResources #EmploymentLaw #Redundancy #HRStrategy #WorkplaceCulture #BloomHR #NFP