Have you recently been made redundant and left wondering what to do next? Do you know if your redundancy is genuine and what to check for?
To guide you through this process, we have put together a helpful infographic, which outlines some of the important things to consider*.
What is a genuine redundancy?
As a result of COVID-19, this question has become increasingly relevant as more and more employees find themselves confronted with termination of employment.
So what exactly is a ‘genuine redundancy’?
A dismissal is a case of genuine redundancy when:
- The employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s business; AND
- The employer has consulted with the employee as required by the Modern Award or Enterprise Agreement (if applicable); AND
- It was not reasonable for the employer to redeploy the employee elsewhere within its business or associated entities (if applicable).
If these elements (which are detailed in section 389 of the Fair Work Act) are not satisfied, then the dismissal may be unfair and the employee may be eligible to file an Application for an unfair dismissal remedy in the Fair Work Commission.
If successful, the Fair Work Commission may order reinstatement with back-pay or, if reinstatement is not appropriate, compensation up to a maximum of 6 months wages.
Please be aware: Strict timeframes apply for unfair dismissal claims (21 days from the date the dismissal takes effect).
Let’s look at the 3 different elements that make up a genuine redundancy in turn.
1. Job no longer required
Whether or not an employer requires the employee’s job to be performed after operational changes have been made will often involve questions such as:
- Has the employee’s job survived the restructure?
- Is there a job left for the employee to perform?
For instance, it may be that an employer no longer requires the employee’s job because:
- A Machine is now available to do the employee’s job instead; or
- A downturn in trade has necessitated a reduction in the number of employees on staff; or
- The employee’s tasks have been redistributed and absorbed amongst existing staff; or
- The employee’s job has been outsourced.
The obligation to consult with the employee about the redundancy only arises if the employee’s position is covered by a Modern Award or Enterprise Agreement.
If no Award or Agreement applies, then there is no legal requirement to consult with the employee before making their position redundant.
If an Award or Agreement does apply, it will typically require the employer to provide the employee with notice of the operational changes, along with an opportunity to respond with ways in which the adverse affects of those changes can be averted, before a decision to terminate the employment on the grounds of redundancy is made.
For instance, many Awards require an employer to give notice of the operational changes that may affect the employee and proactively discuss those changes with them. This could include providing the employee with all relevant information about the nature of the changes, their expected effect on the employee and any other relevant information.
Often, there is a requirement to put these matters to the employee in writing. The employer must also listen to any matters raised by the employee before making a final decision.
Whether or not it is ‘reasonable’ to redeploy an employee will depend on a variety of factors, such as:
- Does a position exist (either within the business or an associated entity of the business) which the employee could be redeployed into?
- Is the employee qualified to perform that job?
- Do they have the relevant skills and experience?
- Where is the location of the job? Is it reasonable in comparison to the employee’s current place of work?
Where do I stand?
There are many varied and unique issues that can arise when assessing whether or not an employee’s position has been made redundant and is a ‘genuine redundancy.’
To find out if your case is a genuine redundancy and/or whether you are eligible to file an Application for Unfair Dismissal Remedy, you can:
- Book in for a complimentary 20 minute consultation on our website (perfect for those wanting some assurance on their options): or
- Book in for a tailored 1hr legal advice consultation (ideal for those who are serious about finding their voice in the workplace).
What if it is a genuine redundancy?
If it turns out that your position really was a ‘genuine redundancy,’ there are a number of things you should still check to make sure you are receiving your correct entitlements and are well placed to finding new employment:
- Are you entitled to a redundancy payment – either under the Fair Work Act, your Award or Enterprise Agreement (if applicable) or your Employment Contract?
- Have you been paid correctly – do the numbers add up? Have you been taxed correctly?
- Will your employer help you find new work by providing a statement of service or possibly even a more favourable letter of reference?
- Do you need help updating your CV/Resume? Do you know what it needs to say in order to help you land your dream job?
- Do you need to speak to a career coach? Now might be the perfect time to reassess what you really want out of your professional career moving forward.
If you are still feeling unsure, please do not hesitate to Contact Us at Rubix Legal and talk to a legal expert to fully understand your rights.