Fair Work rejects childcare centre’s redundancy claim after role was reposted

The Fair Work Commission (FWC) has rejected a Queensland childcare provider’s argument that an educator’s dismissal was a genuine redundancy, after the service subsequently advertised a substantially similar role.

The decision provides a timely reminder for early childhood education and care (ECEC) employers that genuine redundancy has a specific legal meaning under the Fair Work Act 2009.

Where work continues to be required, consultation requirements are not satisfied or reasonable redeployment opportunities are not properly considered, an employer may be unable to rely on the genuine redundancy exemption from unfair dismissal, even where legitimate financial or operational pressures exist.

The employer argued that the educator’s position was no longer required because of changes to the operational requirements of the business.

However, the service subsequently advertised a substantially similar position, raising questions about whether the employee’s job had genuinely ceased to be required.

In considering the matter, the Commission looked beyond the description given to the termination and considered whether the statutory requirements for a genuine redundancy had been satisfied.

The Commission ultimately determined that the dismissal was not a case of genuine redundancy and found the dismissal to be harsh, unjust or unreasonable.

The case highlights an important consideration for employers: where substantially the same work continues to be required, particularly where a similar position is subsequently advertised, the circumstances surrounding the redundancy are likely to attract close scrutiny.

Under the Fair Work Act, a dismissal may be considered a genuine redundancy where:

• the employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the business;
• the employer has complied with any applicable consultation obligations contained in a modern award or enterprise agreement; and
• it would not have been reasonable in all the circumstances to redeploy the employee within the employer’s enterprise or an associated entity.

Simply describing a dismissal as a redundancy does not, on its own, satisfy these requirements.

Employers should be able to demonstrate the operational changes underpinning the decision and why those changes mean the employee’s job is no longer required to be performed by anyone.

Redundancy decisions can present particular complexities in early childhood education and care.

Approved services operate within educator-to-child ratio and qualification requirements under the National Quality Framework, meaning workforce structures are closely connected to both operational requirements and regulatory compliance.

Where an educator position is removed as part of a restructure, providers should carefully consider how the work previously attached to that position will be managed and how regulatory and operational requirements will continue to be met.

If substantially the same duties continue to be performed, or a similar position is subsequently created or advertised, providers should be prepared to explain the operational circumstances surrounding those decisions.

This does not mean a childcare provider cannot legitimately restructure its workforce.

ECEC services continue to navigate wage pressures, fluctuating occupancy, workforce shortages, regulatory requirements and rising operating costs. Those circumstances may legitimately lead an organisation to review its structure and staffing arrangements.

The critical issue for the genuine redundancy test, however, is whether the employee’s job is no longer required to be performed by anyone because of changes in the employer’s operational requirements.

Consultation is another important consideration when implementing significant workplace change.

Where the Children’s Services Award applies, employers contemplating major workplace change have consultation obligations, including providing affected employees with relevant information, discussing the changes and their likely effects, and considering measures to reduce adverse impacts.

These requirements should be incorporated into the restructuring process rather than treated as an administrative step after a decision has effectively been made.

Compliance with applicable consultation obligations is also expressly relevant to whether a dismissal meets the genuine redundancy provisions of the Fair Work Act.

The decision provides several practical considerations for approved providers and service leaders contemplating workforce restructuring:

• undertake and document the operational review underpinning the proposed restructure;
• clearly identify why a particular job is no longer required to be performed;
• consider how educator-to-child ratios, qualifications and other operational requirements will continue to be met;
• comply with applicable consultation requirements before implementing significant workplace change;
• genuinely consider and document reasonable redeployment opportunities within the organisation and associated entities; and
• carefully consider the implications of subsequently advertising or filling a role involving substantially similar work.

Providers should also ensure there is a clear documentary record of the reasons for a restructure, the consultation undertaken and the alternatives considered.

Where significant workforce changes are contemplated, obtaining appropriate workplace relations, employment law or human resources advice may assist providers to understand their obligations and manage potential risks.

The decision is a reminder that the Fair Work Commission will consider the substance of the circumstances surrounding a redundancy when determining whether the statutory requirements have been satisfied.

For the ECEC sector, where workforce decisions intersect with regulatory requirements, ratios, qualifications and operational viability, employment compliance remains an important component of organisational governance.

As providers navigate changing financial and operational conditions, workforce restructures should be supported by clear evidence of operational change, appropriate consultation and genuine consideration of redeployment.

Doing so not only assists providers to meet their employment obligations but also provides greater transparency for employees affected by significant workplace change.

Source: Fair Work Commission, [2026] FWC 2922. The original decision is available through AustLII here.