Why "genuine" is the whole ballgame
Here is the fact that changes everything: a genuine redundancy is a complete defence to an unfair dismissal claim. If your redundancy was genuine, you generally cannot bring an unfair dismissal case, no matter how upsetting the situation. But if your redundancy was not genuine — even where there was a real business reason behind it — that defence falls away, and an unfair dismissal claim can proceed on its merits.
The question is not just "did the business have a reason?" It is "did this dismissal meet every element of the legal test for genuine redundancy?" Employers routinely assume the first question is the only one that matters. It isn't. And that gap is where a great many valid claims live.
The three-part test under section 389
Under section 389 of the Fair Work Act 2009 (Cth), a dismissal is only a genuine redundancy if all three of the following are satisfied. Miss one, and it is not genuine.
- The job is no longer required by anyone. The role must have genuinely ceased to be needed because of changes in the operational requirements of the business — a downturn, a restructure, automation, a merger, closing a site. The key word is anyone. If your duties were simply handed to someone else, or a near-identical role was created under a new title, the job arguably still exists and the redundancy may not be genuine. Replacing you with a cheaper worker doing the same job is not redundancy.
- The employer complied with any consultation obligation. This is the big one — see below.
- Redeployment was not reasonable. The employer must show there was no other reasonable role you could have been redeployed into, within the business or an associated entity. If a suitable vacancy existed and you were not offered it — or not genuinely considered for it — the redundancy may fail this limb.
The part employers most often get wrong: consultation
If there is one reason otherwise-lawful redundancies become successful unfair dismissal claims, it is consultation. The obligation usually comes not from the Fair Work Act itself, but from the modern award or enterprise agreement that covers the employee. Almost every modern award contains a consultation clause that is triggered by "major workplace change" — and because most employees are covered by an award or agreement, the obligation applies far more often than employers assume.
When it applies, consultation is mandatory and must be genuine. That means the employer must notify affected employees of the proposed change before the decision is finalised; give them a real opportunity to respond and raise alternatives; and genuinely consider that response. The point that catches employers out, confirmed repeatedly by the Fair Work Commission: even if consultation would not have changed the outcome, failing to consult means the redundancy is not genuine. A quick phone call announcing a decision already made is not consultation — it is notification, and it does not satisfy the obligation.
A worked example of where redundancy goes wrong
A business decides, for sound financial reasons, that it can no longer afford a particular role. The owner is certain it is a genuine redundancy — the money simply is not there. They call the employee in, explain the decision, and finish them up that afternoon with their entitlements paid. Clean and decisive, or so it seems.
But if that employee is covered by a modern award with a consultation clause — as most are — the employer has just walked into a problem. There was no consultation before the decision was finalised, no opportunity for the employee to respond or suggest alternatives, and no genuine consideration of redeployment. The business reason was real, but the process was not followed. On these facts the redundancy may not be "genuine" for the purposes of section 389 — which means the unfair dismissal defence is gone. Cases with almost exactly these facts come before the Commission regularly, and employers are frequently surprised to learn that their sound business reason did not save them.
Signs your redundancy may not be genuine
- Your duties are still being done by other people or under a different job title
- You were told the decision was final before anyone consulted you
- There were other roles you could have filled, and you were not offered or considered for them
- You were the only person selected, and the basis for choosing you is unclear or feels like a pretext
- Your award or agreement contains a consultation clause that was not followed
Remember the 21-day deadline: if you want to challenge a redundancy as an unfair dismissal, the application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. See our unfair dismissal 21-day rule guide.
And if you suspect the redundancy was really a cover for dismissing you because of a protected attribute (age, pregnancy, disability) or because you exercised a workplace right, it may be a general protections matter — a different claim with its own deadlines, covered in our general protections guide.
How mediation resolves redundancy disputes
Redundancy disputes are often as much about process, communication and dignity as they are about money — which makes them well suited to mediation. Rather than fighting over whether the technical test was met in a public hearing, mediation lets both sides craft a practical resolution: an agreed payment or additional entitlement, a reference or statement of service, outplacement or transition support, confidentiality, and a mutual release that ends the matter cleanly. For the employer, it avoids a published unfair dismissal finding. Both sides keep control of the result. See our redundancy and restructure mediation page for how we approach these matters.