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Recruiting for roles after making redundancies

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Schools Ministry Group Incorporated (SGM) underwent a restructure after the current pandemic began affecting its schools. As part of this restructure, the role of its HR Manager was made redundant.

The HR Manager brought an unfair dismissal claim which he withdrew on religious grounds. He later learned SGM hired a HR Manager and Recruitment Manager after his dismissal and sought leave to set aside the discontinuance of his earlier claim (132 days after the deadline to lodge an unfair dismissal claim).

The Fair Work Commission (FWC) had no jurisdiction to reverse the discontinuance. They noted that SGM’s subsequent recruitment in the roles did not constitute a reasonable explanation for the HR Manager’s delay, as his original claim was already on the basis that he did not believe his redundancy genuine. Had there been a new belief about his dismissal, the extension may have been granted.

See Benzier v SGM [2020] FWC 5373

Lessons

  1. Similar to the recent case of Lakhan v United Petroleum [2020] FWC 4970, SGM’s recruitment in the above roles came about when the impact of COVID-19 subsided. An employer is only required to evidence that the recruitment was not in its contemplation at the time of dismissal, to establish a redundancy was genuine.
  2. The FWC will only grant an extension of time to lodge an unfair dismissal claim under exceptional circumstances. If the basis for the employee’s claim remains largely the same, it is unlikely such an extension would be granted.

Written by Nes Demir

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