FWA has found that an employee was genuinely made redundant when his boss dismissed him because of financial difficulties and then took over his job.
When tough times struck late last year, Jaston Concrete Cartage Pty Ltd's owner decided to make one of the company's five drivers redundant and perform the work himself.
Commissioner Ingrid Asbury accepted the company had come under financial stress – the owner had submitted notices of demand from his bank as evidence – and that the employee was dismissed as a result.

The employer therefore had a genuine operational reason for reducing its workforce by one, she found.

"These circumstances are no less a case of genuine redundancy, than would be the case if [the owner] had decided to dismiss one driver and to operate with four instead of five drivers. The critical point is that the work of one driver was no longer to be performed by an employee, but rather by the owner of the company," she said.

On the Fair Work Act's requirement to comply with consultation requirements under the relevant award, Commissioner Asbury found the employer had circulated a letter to employees informing them of the financial troubles and that there was a risk to jobs.

While this consultation was "rudimentary, to say the least", she ruled that, given the size of the employer, it was sufficient to comply with the Act.

"It would not be consistent with a “fair go all round” or the needs of small business, to require [the owner] to engage in consultation at the same level and standards which would be expected of larger
businesses," she said.
Commissioner Asbury found that the driver had genuinely been made redundant and rejected his unfair dismissal claim.