The Workplace Bulletin provides practical updates on important developments in employment law, common workplace issues, and successful case studies from clients of Susan Moriarty & Associates. Acting predominately for employees, we discuss the emerging risks, your rights in the workplace and outline practical steps you can take to protect your position.
This edition of the Bulletin profiles a successful disability discrimination settlement and updates our clients on a very important change to what the law now regards as a ‘genuine’ redundancy.
Case study – Disability Discrimination in Employment
Background
Susan Moriarty & Associates represented an engineer with a diagnosis of multiple sclerosis [‘MS’], ASD Level 2, ADHD and Autistic Burnout who was pressured to abandon his medically supported flexible working arrangements. We argued that our client was treated less favourably (due to his disability) than a person without his disability would be treated in the same or similar circumstances and that his position was altered to his prejudice with threats of redundancy.
Fatigue is one of the most common side-effects of MS. Our client requested flexible working arrangements by way of increased remote work to manage his fatigue, an arrangement supported by medical evidence. Engineering staff were permitted to work remotely on a 60/40 basis seemingly without issue, while our client’s arrangement was categorised as problematic due to alleged “optics” and “perception” issues. We argued that our client’s disability and request for flexible working arrangements were an operative factor in the series of adverse decisions that followed, affecting his employment and career as an engineer.
Outcome
Our client determined he did not wish to continue working for this employer and instructed the firm to negotiate a voluntary severance. In a without prejudice letter to the respondent, we proposed an initial offer to settle by way of a mutual separation agreement. Our client agreed to forgo his right to pursue a general protections or discrimination claim in exchange for a settlement sum that accurately reflected his loss and contribution to the company. We received an immediate counter of an ex-gratia payment equal to 12 weeks and a statement of service, which our client was pleased to accept.
With only one letter exchanged and without the need to commence formal proceedings, our client was able to exit his employment on favourable terms and avoid the stress, time, and costs associated with litigation.
The Scope of the Fair Work Commission in Genuine Redundancies
The High Court has confirmed in Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29 that the Fair Work Commission may undertake a wide-ranging and broad inquiry in determining whether a redundancy is genuine under the Fair Work Act 2009 (Cth). This is a pivotal Decision from the highest court in the land defining an employer’s obligation to genuinely consider options for continued employment and goes much, much further now in what is often a perfunctory exercise checking vacant positions.
In this case, Helensburgh Coal significantly reduced its number of employees as a result of a restructure, including 47 redundancies, while external contractors continued to perform similar work. The Court held that the Commission was entitled to consider whether it would have been reasonable for the employer to reorganise its workforce, including by redeploying the redundant employees into contractor roles.
Redeployment was not limited to existing vacant positions and extends to the possibility of restructuring the workforce to create availability for the otherwise redundant employees. The Commission cannot, however, require an employer to alter the fundamental nature of its business or force someone out of a role.
Employers should expect greater scrutiny by the Commission in determining whether redeployment was reasonable.
How can we help
Susan Moriarty & Associates regularly assists and advises our clients on a wide range of workplace issues and concerns. Whether addressing matters informally or representing employees before the relevant Commission in active proceedings, we provide practical guidance to protect your rights, clarify your options and achieve fair outcomes.
We can assist you with the following matters:
- Unfair dismissal and general protections claims.
- Performance management, disciplinary processes, and workplace investigations.
- Discrimination and reasonable adjustments.
- Redundancy advice.
For further information or advice specific to your circumstances, contact Susan Moriarty & Associates for a confidential consultation. We are here to help.