Flexible Work – No Immunity Against Redundancy

| January 21, 2025

The Fair Work Commission’s (FWC) decision in Shilson-Josling v Atomic Search Pty Ltd [2024] has reaffirmed the boundaries of “genuine redundancy” under the Fair Work Act 2009.

The decision highlights the operational discretion employers hold and confirms that employees are not immune from redundancy during the term of a flexible working arrangement.

Background

Mr. Samuel Shilson-Josling, a Search Engine Optimisation (SEO) Executive at Atomic Search Pty Ltd, challenged his dismissal, asserting that it was unfair because it occurred during the term of his flexible working arrangement. He cited issues such as conflicts with his line manager, his manager’s health, recent sick leave, and “without prejudice” offers made by the company as evidence of improper motives for the dismissal.

FWC Findings

The Commission dismissed these claims, finding that: 

• Operational Change: The redundancy was driven by genuine operational changes, including the restructure of the SEO team to improve business efficiency and create a more senior SEO Manager role.
• Flexible Working Arrangements: Flexible working arrangements do not render an employee immune to redundancy.

“Operational issues or problems for a business can arise at any time. As a general proposition, an employee is never immune from being made redundant.” 

– Deputy President Boyce

• Unsubstantiated Claims: Allegations regarding conflicts, health concerns, and timing lacked probative evidence and were deemed irrelevant to the redundancy decision. 

The Commission concluded that the dismissal met the criteria for “genuine redundancy” under section 389 of the Fair Work Act. 

Key Takeways for Employers 

1. Document Business Needs 
   Atomic Search demonstrated that the redundancy stemmed from operational changes. Deputy President Boyce emphasised that the Commission’s role is not to evaluate the merits of an employer’s decision but to ensure decisions are based on genuine operational requirements. 
   
2. Consider Redeployment Options
   Thoroughly explore whether employees can be redeployed elsewhere in the business. Atomic Search identified alternative positions but found them unsuitable for Mr. Shilson-Josling, a conclusion the Commission supported.
   
3. Address Employee Concerns Directly 
   In this case, the employee raised grievances unrelated to the redundancy. Ensuring transparent communication and a consistent approach to workplace concerns can help resolve such issues before they escalate.

Managing redundancies during flexible working arrangements or under atypical employment conditions can be challenging.

At IRiQ Law, we provide expert advice to help businesses navigate these complexities. Contact us today to learn how we can assist.