What is a Genuine Redundancy?
A genuine redundancy is a legitimate reason for an employer to terminate an employee's position when it is no longer required due to operational changes within the business. To be considered genuine, a redundancy must meet the following criteria:
a) Change in Operational Requirements: Employers must demonstrate that there has been a significant change in the operational needs of the business. This could include restructuring, technological advancements, downsizing, or any other valid reason that renders the employee's role redundant.
b) Consideration of Suitable Alternative Employment: Before proceeding with redundancy, employers must make reasonable efforts to find suitable alternative roles within the company or its associated entities for the affected employee. This involves considering the employee's skills, qualifications, and experience.
c) Consultation Requirements: Employers have an obligation to follow consultation requirements as set by modern awards or legislation. This includes informing employees of potential redundancies, discussing the reasons behind them, and allowing employees to provide feedback or suggestions.
Preparing for a potential redundancy
If you suspect that redundancy may be on the horizon, there are proactive steps you can take to prepare:
a) Update Your Resume: Ensure your resume is up-to-date and highlights your talents and achievements. Presenting this to your employer can demonstrate your value and may increase your chances of being considered for other roles within the company.
b) Identify Transferable Skills: Prepare a list of other duties or responsibilities you can perform within the business. Showing your versatility and adaptability can make you an attractive candidate for other positions.
c) Request Written Communication: If you receive verbal communication about potential redundancy, request written documentation of all discussions and decisions. Having everything in writing ensures transparency and clarity throughout the process.
d) Provide feedback in any meeting: Your employer will meet with you to discuss the potential redundancy of your role. It is important that you have undertaken the above steps so that you can respond with ideas and options of other business functions and roles that you can perform. The chances are you may come up with something that your employer has not thought of.
The Redundancy Process and Employer Obligations
a) Consultation Pursuant to Modern Awards and Legislation: Employers must adhere to consultation requirements set by relevant modern awards or legislation. This involves notifying employees of potential redundancies, discussing the reasons behind them, and considering feedback.
b) Possibility of Retrenchment: If suitable alternative employment cannot be found, the employer may proceed with retrenchment. This involves terminating the employee's employment while providing any required notice period or pay in lieu of notice.
c) Redundancy Entitlements: Employees facing redundancy are generally entitled to redundancy pay based on their length of service with the employer. The exact entitlements may vary depending on the applicable award, enterprise agreement, or employment contract.
Redundancy and Salary Employees - Does It Apply to Me?
Redundancy can apply to both hourly and salaried employees. The same principles of genuine redundancy apply regardless of your pay structure. Review your employment contract and understand your entitlements, including notice periods and compensation.
What If My Redundancy Was Not Genuine? What Can I Do?
If you believe that your redundancy was not genuine and did not meet the necessary criteria, you have options to protect your rights:
a) Unfair Dismissal Claim: If your redundancy was unfair or not genuine, you may be eligible to file an unfair dismissal claim with the relevant employment tribunal or Fair Work Commission. A successful claim could result in reinstatement or compensation.
b) General Protections Claim: The Fair Work Act provides protections against adverse actions taken by employers. If you suspect your redundancy was retaliatory or discriminatory, you can make a general protections claim.
c) Wrongful Termination Claim: If your redundancy was in breach of your employment contract or violated other legal rights, you may consider lodging a wrongful termination claim.
Have you been made redundant, what can you claim?
If you have been made redundant and it was not genuine, then you will be able to claim compensation for loss of wages and failure for your employer to provide you with the requisite notice period.
Contact Brunet Law for Expert Advice
If you believe that you may be facing redundancy or have concerns about your redundancy process, contact Brunet Law today. Our experienced team can discuss your options, rights, and entitlements to help you navigate through this challenging time and protect your interests.