TERMINATION OF EMPLOYMENT – genuine redundancy – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance seven appellants’ unfair dismissal applications were dismissed, the Commission found each dismissal was a case of genuine redundancy – Full Bench found appeal raised important questions concerning the application of s.389(2) of FW Act and granted permission to appeal on 9 August 2016 – in particular, in circumstances where the consideration of a swap of the positions of persons identified for retrenchment with persons who were open to a voluntary redundancy had been raised as a possibility by an employer or was a possibility sought by persons identified for retrenchment – grounds for appeal included that the Commission erred in finding each of the dismissals were a case of genuine redundancy and that it would not have been reasonable for the respondent to redeploy the appellants – in determining whether it would have been reasonable, a number of relevant factors might need to be considered – in Ulan the required qualifications for the position, the skills, qualifications and experience of the employee, the location of the position and the level of remuneration were all identified as relevant matters – Full Bench considered these to be only a sample of the matters that might be considered – no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy – Full Bench held the possibility of swaps should have been considered, and the respondent’s failure to do so, by removing that option from consideration altogether, resulted in the respondent having failed to comply with its obligations under s.389(2) – not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position was redundant by allowing that person to swap with another employee who wished to accept redundancy – not satisfied that the dismissal of the appellants was a case of genuine redundancy – Full Bench allowed the appeal and quashed the Decision at first instance – applications will be referred to Commissioner Johns for rehearing. Appeal by Skinner and Ors against decision of Johns C of 4 May 2016 [[2016] FWC 2720] Re: Asciano Services P/L t/a Pacific National Bulk
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