TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for unfair dismissal remedy – respondent objected on basis that termination was genuine redundancy – respondent notified applicant position was surplus to requirements and applicant entitled to eight week redeployment period – applicant applied for two roles during redeployment process and was unsuccessful in both applications – applicant received notice of termination – applicant submitted respondent failed to meet consultation and redeployment obligations in enterprise agreement – respondent submitted that it fulfilled obligations under agreement – Ulan Coal Mines Limited considered – respondent argued its decision was consistent with Ulan as it was not appropriate to redeploy applicant and applicant not suitable for vacant positions – Commission found that respondent misunderstood the nature of assessment in s.389(2) of FW Act – applicant submitted respondent did not consider applicant for positions below applicant’s classification – respondent submitted it was entitled to redeploy applicant per ‘custom and practice’ to redeploy employees at same classification or one classification lower – Commission found respondent did not provide reasonable explanation for failure to consider applicant for 40 vacant positions – held respondent’s ‘custom and practice’ inconsistent with agreement that contemplates lower level redeployment – found respondent’s view that available positions not appropriate for applicant was not a basis for not putting these positions to applicant to consider – applicant not afforded an opportunity to consider salary maintenance in agreement as positions of lower classification were not put to him – vacant positions were not publicly advertised or accessible to applicant meaning applicant did not have opportunity to ask about positions he did not know existed – Commission found there were a number of positions, many at a lower classification, into which applicant could have been deployed – prepared to infer that applicant likely to be suited for at least one of 40 positions – dismissal of applicant not genuine redundancy – jurisdictional objection dismissed. Pallett v Federation University
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