Performance-based redundancy not a genuine redundancy

A recent Fair Work Commission ("FWC") decision serves to remind employers that a solely performance-based redundancy is not a "genuine redundancy" for the purposes of the Fair Work Act 2009 (Cth). The FWC's finding that the reason for the restructure, and hence the redundancy, was the Employer's dissatisfaction with the Applicant's performance, supported the finding that termination of the Applicant's employment was "unfair".

1. Performance-based redundancy is not a genuine redundancy

To summarise the facts of this matter:

• the Applicant was employed as the "State Manager NSW" for approximately one year, until his employment was terminated, purportedly on the basis of a "genuine redundancy";