Don’t Wait, Unfair Dismissal and Redundancy
Have you been unfairly dismissed or made redundant? The Fair Work Act sets out your rights as an employee, ensuring that your hard-earned money is not wasted. Our team of employment lawyers have prepared the below for those wanting to learn more or know what to do in the instance of unfair dismissal or redundancy.
The Fair Work Commission (‘FWC’) states that redundancy occurs when an employer decides they either no longer need an employee’s job to be done by anyone, or the employer becomes insolvent or bankrupt, and terminates the employee’s employment. Importantly, that means that the job itself, not the employee, becomes redundant. For an employer to make you legally redundant, it must be considered a ‘genuine redundancy’ within the meaning of section 389 of the Fair Work Act 2009 (Cth) (‘Act’). To be considered a genuine redundancy, the employer must satisfy the following three conditions:
1. Your job is no longer required
Your job must no longer be required due to ‘operational changes’ in the business. Operational changes may include (among other things) the following:
- Your job is being replaced by a machine;
- Your job is being outsourced to another business;
- The company is undergoing a re-distribution of employee tasks; and / or
- The number of positions at the company is being reduced to cut company costs.
2. You may need to appropriately consult with you prior to the redundancy
If your employment is covered by a Modern Award or Enterprise Agreement, the employer must consult with you prior to the redundancy. This means the employer must complete (among other things) the following:
- Your employer must put the potential changes in writing;
- Your employer must give you notice of any proposed changes;
- Your employer must consider measures to reduce any adverse effects to you as an employee; and / or
- Your employer must discuss the potential impact of the proposed changes with you as the employee.
3. Your employer may need to consider reasonable redeployment into another role
This means that your employer must (among other things) consider the following:
- Whether the company has any other vacant positions;
- That the location of any potential redeployment is not unreasonable;
- Whether you as an employee are suitably qualified for any other positions;
- Your employer must give you notice of any proposed changes; and / or
- Your employer must consider measures to reduce any adverse effects to you as an employee.
Section 385 of the Act otherwise sets out that you will have been unfairly dismissed if:
- you have been dismissed; and
- the dismissal was harsh, unjust or unreasonable; and
- the dismissal was not consistent with the Small Business Fair Dismissal Code; and
- the dismissal was not a case of genuine redundancy.
NEXT STEPS, DO I NEED AN EMPLOYMENT LAWYER?
If you are looking to seek legal advice regarding whether a redundancy is genuine in your role as either an employer or employee, Ramsden Lawyers are able to assist you. We are happy to arrange an initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances. We have a litigation team with expert employment lawyers who can assist in any potential claim or defence that you may have.
WHAT IF I WAS GENUINELY MADE REDUNDANT?
If you believe you were genuinely made redundant, you may have other legal rights to consider. For instance, you may be
- entitled to a redundancy payment under your:
- Employment contract;
- Enterprise agreement; and / or
- the Act;
- entitled to back pay if you were incorrectly paid as at the date of your dismissal / redundancy, including (among other things) being unpaid or even over charged for tax; and
- otherwise want to speak with your employee to request the following:
- assistance finding new employment and / or a favourable letter of reference; and / or
- assistance amending and updating your CV / Resume.
KEY TAKEAWAY’S FOR EMPLOYEES
The Act set out your rights as an employee in Australia. That said, the Act can be difficult to understand and as such, with our assistance we can point you in the right direction. The elements of ‘genuine redundancy’ listed above are set out in section 389 of the Act, which, if your employer fails to satisfy all three elements, you may be able to bring an unfair dismissal claim against your employer and seek remedies in the FWC. If your application is successful, the FWC may order that you be either reinstated in your role, paid back-pay to the date your were made redundant, or even offer damages for a maximum of six months’ worth of your pay.
Please bear in mind that the Act imposes strict timeframes for claims you may seek to make. You only have 21 days from the date of your dismissal / redundancy to bring the relevant application(s), so it is important you act without delay in order to protect your rights.
KEY TAKEAWAY’S FOR EMPLOYERS
Business owners should be aware that they have strict legal obligations to meet under the Act. That said, even the largest businesses get it wrong at times, and small to medium business owners should be wary when making business decisions that may ultimately be a breach of relevant employment laws in place to protect Australian employees. Businesses should carefully consider their decisions to ensure that they are not in breach of any agreement or statutory protection. You can read more on our website by clicking the following link or, alternatively, you may wish to reach out to our employment lawyers or business / commercial lawyers to further discuss your business’ current and proposed operational plans.
OUR ROLE, EMPLOYMENT LAWYERS AND YOUR SUCCESS
If you are looking to seek legal advice as an employer or employee, Ramsden Lawyers are able to assist you. We are happy to arrange an initial consultation with our employment lawyers to assist you in navigating the procedures set out under the Act.
The content of this article, prepared by our trained employment lawyers, is intended to provide a general guide to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
For all things litigation and business at Ramsden Lawyers please follow this link, to speak to one of our employment lawyers.