KEY TAKE OUTS
As we move though Covid19 we are seeing an increase in redundancies. So, what is a redundancy and what are the requirements. Knowledge is power after all and if you are an employer you need to ensure it is a “genuine redundancy” as defined under the Fair Work Act 2009 (Cth). You must follow the requirements to ensure you can satisfy that it is genuine. If you are an employee you need to understand what it looks like on the receiving end.
An unfair dismissal cannot be made if the dismissal was a case of genuine redundancy. A genuine redundancy is when the employer no longer requires the persons job to be performed by anyone because of changes in the operational requirements of the employers business/company and the employer had complied with its obligations under the relevant award or enterprise agreement.
A dismissal is NOT a case of genuine redundancy if it would have been reasonable to redeploy the person within the organisation. We see this as a common issue due to lack of consultation.
The employer must prove it has complied with section 389 of the Fair Work Act 2009 (Cth). If the requirements are not met than the Fair Work Commission must determine if the dismissal was unfair.
What are the obligations under s389 of the Fair Work Act 2009 (Cth)?
Firstly, ask yourself is the job still available? If not than it is more likely a genuine redundancy. If yes and the role has been replaced due to reshuffle of staff or the Company’s need to downsize, depending on the parts of s389 of the Fair Work Act 2009 the redundancy may not be genuine.
There is an obligation to consult with the employee about the redundancy. This is a common mistake made and there is an obligation on employers which is set out in many awards and enterprise agreements as to the consultation process. Make sure you consult the applicable Award or enterprise agreement.
The employer must then satisfy that it would have been unreasonable in all of the circumstances for the person to be redeployed within the business or enterprise or any associated entity. If consultation does not occur than it is likely redeploy was not considered at all.
There may also be prohibited reasons such a pregnancy, discrimination or other general protections of the Fair Work Act 2009. You should always seek advice if you are unsure of your legal rights.
What are the time limits?
You must within 21 days of your letter of termination or redundancy lodge an Unfair Dismissal Application with the Fair Work Commission. There are provisions for an extensions of time in limited exceptional circumstances but you should always try and lodge in the time frame to avoid your claim been struck out.
The Employer has 7 days to lodge a Response and usually the matter is referred for Conciliation within 6-8 weeks.
If the matter remains unresolved the employee can elect to move to the Fair Work Commission hearing process. This is where you can gather more evidence to support your claim such as statements and proof documentation.
Do I have to consult?
You must establish whether there is a need to consult. The obligation arises when the employee is covered by a modern award or enterprise agreement which contains the requirement. If you are a high income earner employee a modern award will not apply and as such there is no obligation to consult. You may have other avenues under unfair dismissal and should seek advice.
Unfortunately, if there is no modern award or enterprise agreement that applies, there is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.
If an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy, the redundancy will not be deemed genuine. There is no definite obligation to consult but the employer must fulfil its obligations under the relevant award or enterprise agreement if the dismissal is to be considered as genuine redundancy.
The Fair Work Commission has the ability to assess whether the criteria under S389 of the Fair Work Act 2009 has been met including “any other matters that the commission considers relevant” as set out in s387 (h) of the Fair Work Act 2009.
However, it should be noted that the failure to consult may not automatically render it not a case of genuine redundancy if in circumstances that a consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change. There is relevant case law to this effect.
Given the complexity of redundancy and the increase in cases of redundancy it is important to seek advice before you take steps which could lead you to Fair Work. Please contact one of us to assist you in the process and get the best outcomes for your situation.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts Lawyers & Conveyancers and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
For further information please don’t hesitate to contact:
Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
