Three elements, and all three must hold

By Equipo Saplic Published on 12/08/2026 Updated on 12/08/2026

The role must disappear, not you.

In this guide
  1. The three-element test
  2. Even where the money was right
  3. Consultation
  4. Redeployment
  5. Sham redundancy
  6. Redundancy versus performance management
  7. What the Commission can do
  8. The deadline
  9. What to document

A redundancy happens when your employer no longer needs your job done by anyone — the role disappears, not the person.

The three-element test

Under section 389 of the Fair Work Act, a redundancy is only genuine if:

  1. The role is genuinely no longer required
  2. Consultation obligations have been met
  3. Redeployment was not reasonable

If any one fails, you may have an unfair dismissal claim.

Even where the money was right

A redundancy that was not genuine — because consultation obligations were not followed, or reasonable redeployment was not considered — can still support an unfair dismissal claim even where redundancy pay was correctly calculated and paid.

The payment and the process are assessed separately.

Consultation

Modern awards and enterprise agreements contain consultation obligations that apply before a redundancy takes effect. Failing them is a direct route to a claim.

Redeployment

The employer must consider whether it would have been reasonable to redeploy you within the business or an associated entity.

Check internal vacancies you could have filled — including at lower pay, if reasonable.

Sham redundancy

If your employer hires someone else to do your job, the role did not disappear. That is unfair dismissal, not redundancy.

Being replaced by a relative or a cheaper worker is the classic pattern.

Redundancy versus performance management

If an employer uses redundancy to remove a poor performer without following a proper performance management process, that is likely an unjustified dismissal dressed as a restructure.

What the Commission can do

Reinstatement is the primary remedy, with compensation where reinstatement is inappropriate — capped at $95,050 for dismissals on or after 1 July 2026, or 26 weeks' pay if lower.

The deadline

21 days. Form F2 at the Fair Work Commission.

What to document

The consultation that did or did not happen, the vacancies that existed, who was selected and on what criteria, and anything suggesting the role continued after you left.

Frequently asked questions

What is the genuine redundancy test?
Under section 389, all three elements must hold: the role is genuinely no longer required, consultation obligations were met, and redeployment was not reasonable.
Can I claim if my redundancy pay was correct?
Yes. A redundancy that was not genuine can still support an unfair dismissal claim even where the pay was correctly calculated and paid.
What is a sham redundancy?
Where the employer hires someone else to do your job, so the role did not actually disappear. Being replaced by a relative or a cheaper worker is the classic pattern.
What if redundancy was used to remove a poor performer?
That is likely an unjustified dismissal dressed as a restructure, since performance issues require a proper performance management process.
What can the Commission order?
Reinstatement as the primary remedy, with compensation where reinstatement is inappropriate, capped at $95,050 or 26 weeks’ pay if lower.

Sources

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