When a redundancy is not genuine

The three parts of a genuine redundancy

The test comes from section 389 of the Fair Work Act 2009, and the Fair Work Commission's explanation of genuine redundancy follows it closely. A genuine redundancy is a complete answer to an unfair dismissal claim, so it helps to understand what each part actually requires.

Your job is no longer needed by anyone

The test looks at the job as a whole. A business might restructure after a drop in trade, close a site, bring in a machine or software that does the work, finish a project, or outsource a function. The Commission lists all of these as examples of changes in operational requirements, and it's the employer who has to show the redundancy was caused by a change like that.

Some of your duties can carry on after you leave and the redundancy can still be genuine. If a team of four supervisors becomes three and the remaining work is shared between them, the question is whether your job survived the restructure, not whether every task disappeared. The Commission's guidance also notes that a job can be treated as no longer performed by "anyone" in the business when the work goes to independent contractors.

Where it tends to fall down is when the job carries on under a different name. If your employer advertises a role with a new title but much the same duties as yours, or moves your whole job to one colleague and hires someone to backfill theirs, the Commission has found in past cases that the job still existed and the redundancy wasn't genuine.

Your employer consulted, if it had to

The consultation requirement only applies when a modern award or enterprise agreement covers you and it contains a consultation clause, which they often do. If neither applies to you, there's no legal requirement in the redundancy test to consult before the decision. A modern award also doesn't apply to someone earning above the high income threshold, so its consultation clause won't either.

Where a clause does apply, the Fair Work Ombudsman's redundancy page summarises what employers usually have to do once they decide on major change: tell affected employees as soon as possible, give them relevant information in writing, discuss the change and ways to reduce its effects, and consider what employees suggest. The Commission's guidance on consultation obligations says consultation should be meaningful and happen before an irreversible decision is made. A meeting where you're simply told the outcome, with no chance to raise alternatives such as another role, is unlikely to meet that standard.

There was nowhere reasonable to redeploy you

Even when your job has gone and consultation happened, a redundancy isn't genuine if it would have been reasonable to redeploy you within the business or a related company (an "associated entity"). The Commission's redeployment guidance says this depends on the circumstances at the time, including whether a suitable vacancy existed, the skills and qualifications it needed, where it was located and what it paid.

A role doesn't have to be identical to count. If you could do the job straight away or after a reasonable amount of retraining, it may be suitable. Employers also shouldn't assume you'd turn down a lower-paid or less senior position. And if a suitable vacancy existed but you were asked to apply for it in open competition with other candidates, that can count against the redundancy being genuine.

Redeployment has limits too. A vacancy that needs qualifications or experience you don't have, or a role with a very different pay level and working environment, may not be reasonable, and the Commission has accepted that in past decisions.

Signs worth looking into

None of these proves a redundancy wasn't genuine, but each is a reason to look more closely and get advice before the deadline:

• Your job reappears: a new position is advertised or filled with substantially the same duties, even under a different title.
• No real consultation: you're covered by an award or agreement, and the first you heard was the final decision.
• Vacancies you could have filled: there were open roles in the business, or in a related company, that nobody discussed with you.
• You were made to compete: you were told to apply for a suitable vacancy against external applicants.
• The timing looks connected to something else: the redundancy followed sick leave, a complaint about pay, a pregnancy announcement or a similar event.

That last sign is different from the others. How an employer chose who would be made redundant isn't part of the genuine redundancy test, but the Commission notes that an unlawful selection process can be relevant under the general protections laws or anti-discrimination laws, covered in the section on unlawful reasons below.

Who can make an unfair dismissal claim

Being able to show a redundancy wasn't genuine only helps if you're protected from unfair dismissal in the first place. According to the Commission's overview of unfair dismissal, you need to have been employed by a national system employer (most businesses are; the next section covers the exceptions) and to meet both of these requirements:

• Minimum employment period: at least 6 months with the employer, or 12 months if the employer is a small business. A small business has fewer than 15 employees, counting full-time, part-time and regular casual staff, including the people being dismissed. Casual service only counts if it was regular and systematic and you reasonably expected it to continue.
• Coverage or earnings: a modern award covers you, an enterprise agreement applies to you, or your earnings are below the high income threshold, which is $190,100 for dismissals on or after 1 July 2026. Earnings for this purpose exclude amounts that can't be worked out in advance, such as commissions, bonuses and non-guaranteed overtime.

The Commission's eligibility quiz walks through these questions one at a time and is a good first check.

It's also worth knowing that a redundancy failing the test doesn't automatically make the dismissal unfair. It means your employer can't rely on genuine redundancy as a defence, so the Commission goes on to decide whether the dismissal was harsh, unjust or unreasonable. Sometimes it concludes that it wasn't. For example, the Commission has said a failure to consult may carry less weight when consultation was very unlikely to have changed the outcome.

If you work for a state government or a council

The Fair Work Act doesn't cover every employee. In several states, public sector workers, and in some states local government workers, are in a state industrial relations system with its own tribunal, eligibility rules and deadlines. In Western Australia the state system also covers employees of sole traders, partnerships and other employers that aren't trading, financial or foreign corporations.

Victoria, the ACT and the Northern Territory work differently. According to the Fair Work Ombudsman's guide to who is covered, generally all employers and employees in the ACT and Northern Territory are in the national system. Most Victorian employees are too, including state government employees, although there are some exceptions such as senior public servants. If you're in one of those places, the Fair Work Commission is usually the right place to apply.

The table shows where to go in the other states and how long you have. The time limits differ in how they're worded, so read the tribunal's own guidance for the exact starting point.

Two details in the table need care. In the WA public sector, a decision made under the state's redeployment and redundancy regulations is referred to the Commission within 21 days after the decision, which is shorter than the general 28-day limit, so check which applies to you before you count on the longer period. And each state sets its own eligibility rules. The South Australian tribunal, for example, lists exclusions for employees on probation, casual workers, apprentices and non-award employees earning above a set amount, while the WA Commission can't hear a claim from someone who isn't covered by an industrial instrument and earns above its salary cap.

State tribunals can generally accept a late application in limited circumstances, but the tests vary and it's safer not to depend on them. If you're unsure which system you're in, contact the state tribunal or the Fair Work Ombudsman early, while there is still time to lodge in the right place.

If you think the real reason was unlawful

If you believe the redundancy was a cover for dismissing you because of something the law protects, a general protections dismissal application may fit better. The Commission's list of prohibited reasons includes discrimination because of an attribute such as age, sex, disability, pregnancy or family responsibilities. It also covers taking leave or raising a complaint about your pay, being away from work because of illness or injury, and union activity.

The two claims work differently. An unfair dismissal claim asks whether the dismissal was fair. A general protections claim says you were dismissed for a reason that is against the law. The Commission's role in general protections cases is limited to helping both sides reach an agreement, and an unresolved case can go on to a federal court. You can't make a general protections application if you've already made an unfair dismissal application about the same dismissal, so it's worth getting advice on which one suits your situation before you lodge. General protections dismissal applications have the same 21-day limit.

The 21-day deadline and what applying involves

The Commission's deadlines page explains how the time limit works. The 21 days start the day after the dismissal takes effect, which is usually the last day of your employment contract. That can be later than your last day at work, for example if you spent your final week on leave before the contract ended. Weekends and public holidays inside the period still count, although if the 21st day falls on a weekend or public holiday the deadline moves to the next business day. The Commission has to receive the application by 11.59pm on the deadline.

Late applications are only accepted in exceptional circumstances, such as serious illness or the death of a family member. Not knowing about the deadline isn't accepted as a reason, so if you're still deciding whether to apply, try to get advice well before the 21 days run out.

The application fee for 2026-27 is $92.70. If paying it would cause you serious financial hardship, you can ask for it to be waived when you apply.

After you apply, the Commission sends your application to your employer, who has 7 days to respond or object. According to the Commission's outline of the unfair dismissal process, a voluntary conciliation meeting is usually held about five weeks after lodgement, and three out of four cases are resolved there. Cases that don't settle go to a Commission Member, usually at a hearing some months after the application.

If the Commission does find the dismissal unfair, it can order reinstatement or compensation. Compensation is capped at the lower of 26 weeks' pay or half the high income threshold, which is $95,050 for dismissals on or after 1 July 2026. A settlement reached at conciliation can be more flexible than an order.

What to do in the first few weeks

If you're weighing up whether to challenge a redundancy, a few steps can make that decision easier:

• Keep the paperwork: save your termination letter, any consultation letters or meeting notes, emails about the restructure, your position description and screenshots of any job ads that look like your old role.
• Write down what happened while it's fresh: note when you were told, who said what, and whether anyone mentioned other roles.
• Check your award or agreement: the Fair Work Ombudsman can help you work out which applies to you and what its consultation clause says. It can't decide whether your redundancy was genuine.
• Read anything before you sign it: a settlement or release document may include a promise not to bring claims against your employer, so understand what you're agreeing to first.
• Get advice early: if you're not a union member and don't have a lawyer, the Commission's Workplace Advice Service may be able to arrange a free appointment of up to an hour with a lawyer. If you're a union member, your union is a good first call. Asking for advice doesn't pause the 21-day clock, so keep an eye on the date.

Whether your final pay is correct is a separate question from whether the redundancy was genuine. If the amounts don't look right, the Fair Work Infoline on 13 13 94 can help you check them.