Redundancy occurs when an employee’s employment has been terminated by the employer because it no longer requires the job to be done by anyone. This can occur when an organisation introduces new technologies in their processes, in cases of a restructure or re-organisation, or due to changes in operational requirements of the employer.
When considering redundancies, employers should be aware of their obligations under:
When considering redundancies, employers should be aware of their obligations under:
- Federal, state and territory laws
- An applicable modern award or enterprise agreement
- Employment contracts
- Organisation policies
How can we help you?
Talk to us today and our employment team will take you through the redundancy process and provide you with expert legal advice about the following:
Not a case of genuine redundancy?
A job is no longer required if there are no duties left to discharge or functions to perform. However, a redundancy may still be genuine if some of the duties are performed by other employees or by independent contractors, or if the original job remains in place but the duties are substantially altered. In these cases, employees will not be able to make further claims against the employer (for example, an unfair dismissal claim).
On the other hand, a dismissal is not a case of genuine redundancy if:
- All or most of the duties still need to be done by someone;
- The employer has not complied with their legal obligations (for example, obligation to consult or to redeploy); or
- It is carried out because of any personal act or fault of the employee.
If the redundancy is not genuine, employees are entitled to lodge unfair dismissal claims against their employer.
For further information about employees and independent contractors, please see our article Employee or Contractor? What is the difference?
When to consult employees?
An employer must consult their employees about redundancy if an applicable modern award or enterprise agreement requires them to. Consultations should occur prior to making the decision about redundancies. Failure to comply with these rules may give rise to unfair dismissal claims.
If there is no applicable modern award or enterprise agreement, no obligation to consult arises.
Dismissing 15 or more employees?
There are additional obligations if the employer proposes to dismiss 15 or more employees. For example, after the redundancy decision is made, but before any employee is dismissed, employers must give a written notice to Centrelink. In addition, employers must notify each union if any of their members are concerned by the redundancy decision. Failure to comply with these obligations may attract various sanctions, including civil penalties.
What else can we help you with?
Contact our team today to discuss how we can best help you. Elringtons will provide you with expert legal support in all areas of employment, for further information see:
We offer an initial consultation and review of your case for a flat rate fee. Contact us for more information.
