Foster's Group Limited v Wing

(2005) 148 IR 224; [2005] VSCA 322

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Employment Law
2. › Termination of employment
3. › Redundancy
4. › Meaning of redundancy
5. › Whether employee's position made redundant
6. › Whether reorganisation reducing responsibilities of role constitutes redundancy
7. › Whether role no longer exists or duties so changed that for all practical purposes original role no longer exists
1. Employment Law
2. › Termination of employment
3. › Redundancy
4. › Fault of employee
5. › Whether redundancy can arise where termination brought about by fault of employee
1. Appeal
2. › County Court
3. › Error of law
4. › Wrong test applied
5. › Whether appellate court can determine factual question without advantage of seeing witnesses

Quick Take

A position is not made redundant merely because the employer reorganises or restructures the business, or because some duties are transferred to other roles. The critical question is whether the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists. Where a position continues to be filled (even in an acting capacity) and retains substantial functions, there is no redundancy. Additionally, where a contractual redundancy clause requires termination 'through no fault' of the employee, there can be no redundancy entitlement if the termination was in fact brought about by the employee's fault.