Your work has changed dramatically since the COVID-19 pandemic struck, and your employer has decided to restructure their business. As a result, you have been advised that your position has been made ‘redundant’.
You want to know what your options are and what steps you should take to stay in control of your career.
It is natural to feel uncertain, anxious, or frustrated in this scenario. Below, we’ll go through the key questions you should be asking, and how you can form a plan of attack based on the answers.
Is my redundancy genuine?
First, you should consider whether your redundancy is ‘genuine’. There are three components which make up a genuine redundancy.
- Your role is no longer required to be performed due to changes in the operational requirements of your employer.
Note that the focus here is on the role being made redundant, rather than the individual. For example, if the employer simply hires someone else to do your original job that is not a genuine redundancy since the role still exists but is simply being performed by someone else. On the other hand, if the role no longer exists, the responsibilities associated with the role are redistributed to other employees, or the role is replaced with a new position which includes some, but not all of the original role’s duties, that will generally be considered sufficient to satisfy this first component of genuine redundancy.
- Your employer has complied with their consultation obligations.
The award or registered agreement which outlines the minimum entitlements of employment in your industry will usually set out a consultation process that must take place in the case of a redundancy. Generally, this process will involve:
- Notifying employees who are likely to be affected by the proposed changes;
- Providing the employees with information on how they will be impacted by the changes;
- Discussing steps they will be taking to mitigate any adverse effects on the employees; and
- Considering ideas or suggestions made by employees about the proposed changes.
In essence, if you have been given a meaningful opportunity to discuss proposed changes and influence the decision of your employer, then the second component of genuine redundancy is satisfied.
- It was not reasonable for the employer to redeploy you.
Your employer has an obligation to redeploy you within their business or an associated entity where it would have been reasonable to do so in all the circumstances. Determining whether it would have been reasonable will include consideration of what other positions were available and whether you have the competencies required to perform it. Any vacant role you are qualified to perform should be open for consideration, including those at a lower level of remuneration or responsibility.
All three of these components must be satisfied for your dismissal to be a genuine redundancy.
Can I challenge my redundancy?
If your dismissal was not a genuine redundancy, then it is unlikely to be a valid dismissal and you will be able to challenge it.
Depending on the circumstances, you may make an application for either an unfair dismissal or general protections claim. It will be appropriate to submit an unfair dismissal application where you believe there was no valid reason for your dismissal, there was no due process in your dismissal, or the dismissal was harsh, unjust, or unreasonable. A general protections application will be appropriate where you believe you were dismissed from your employment unfairly due to some form of discrimination or disregard for your workplace rights. It is important to act quickly, as these applications must be lodged within 21 days of your dismissal.
If you are successful in making an application, these claims are typically resolved through conciliation with the employer. Monetary settlement for lost pay or compensation is the most common remedy in these disputes, however you may also seek reinstatement to your previous role.
What are my rights if I am made redundant?
Alternatively, if you believe your redundancy is genuine, you should then consider what your rights and entitlements are, and plan how to navigate your exit favourably.
Whenever employment is terminated because of a redundancy, your employer has on obligation to pay you redundancy pay under the National Employment Standards. This is calculated on a sliding scale depending on how long you have worked for your employer, starting at 4 weeks’ pay for a worker with one year of service, up to 16 weeks’ pay for workers of between 9 and 10 years of service. Once you have greater than 10 years of service, the minimum payment drops to 12 weeks’ worth of pay. This is due to that fact that workers with this amount of service will be entitled to long service leave of 2 months. Note, however, that your award or registered agreement may provide for more generous redundancy pay and different entitlements.
There are certain circumstances in which you will not be eligible for redundancy pay. These include where your period of continuous service is less than a year, where you have been employed for a specific period of time or for a particular task, and where you have been made redundant due to the ordinary and customary turnover of labour (where termination in the circumstances was a normal aspect of business).
In addition, you are entitled to receive notice of termination. Depending on how long you have worked for your employer, your minimum period of notice will range between 1 week if you have worked for less than a year, up to 4 weeks if you have worked for more than 5 years. In addition, if you are over 45 years old and have worked for longer than 2 years, you should receive an extra week of notice. Your employment contract may also provide for a longer notice period.
Other entitlements you should be paid on dismissal may include:
- Outstanding wages;
- Payment in lieu of notice;
- Leave entitlements;
- Any other payment agreed with your employer such as a commission or bonus.
How can we help?
We can assist you in determine whether your redundancy is genuine. If it is genuine, then we can support you in negotiating a favourable redundancy package and provide you with the legal expertise to do so with confidence. If your redundancy is not genuine, then we can guide you through the steps needed to challenge your redundancy and efficiently obtain a suitable remedy. Above all, we can help you regain control of your career.
Call JFMLAW on (02) 9199 8597 to discuss your next steps.