Genuine Redundancy or Unfair Dismissal?

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[vc_row][vc_column][vc_column_text]The employment lawyers at Owen Hodge Lawyers understand that losing your job can be a stressful and upsetting time. However, the reason behind your job loss can make a significant difference. The determination as to whether employment has been lost due to genuine redundancy as opposed to discriminatory dismissal practices is governed by the Fair Work Act 2009.


Genuine redundancy or unfair dismissal?

What isn’t a genuine redundancy

There is no such thing as unfair dismissal redundancy. An employee’s dismissal is either a genuine redundancy or a non-genuine redundancy and therefore an unfair dismissal.

If you Google “Fair Work unfair dismissal” you will find that it’s defined as “when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.”

An employee who is released from their job for the following reasons can claim that the job loss was the result of discrimination and therefore not a genuine redundancy:

  • Harsh dismissal
  • Unreasonable dismissal
  • Dismissal based upon any of the following;
    • Race
    • Religion
    • Sex
    • Age
    • Marital status
    • A form of disability
    • Political viewpoints or affiliation
    • Family care issues

If you believe that you have lost your job due to any of these actions by your employer, you have the right to file an unfair dismissal application with the Fair Work Commission. Every employee who has been let go in a discriminatory manner has twenty-one (21) days within which to file an application.

Once your case has been heard and there is a finding that you were dismissed for a discriminatory reason, there are several ways in which you can be compensated via an unfair dismissal claim. However, it is important to note that the final decision regarding compensation for your loss will be up to the Commission.

What is a genuine redundancy

Job loss that is the result of genuine redundancy must meet the following criteria;

  • The employer no longer needs the employee’s job to be performed by anyone
  • The employer becomes bankrupt or insolvent
  • The employer has complied with agreed-upon steps to inform employees of the redundancy and the consequent job loss

The law allows redundancy to occur for the following reasons;

  • New technology eliminates an employment position
  • Business slows down
  • The business closes
  • Relocation of the business either to a new area within Australia or overseas
  • The business is restructured, reorganised or taken over via a merger or sale

However, it is important for employees to recognise any subtle occurrences in the workplace that mean their dismissal does not qualify as genuine redundancy. These could be:

  • Someone else is hired to do the job before the employee leaves or shortly thereafter
  • The employer failed to properly consult with the dismissed employee as per the agreed-upon employment terms
  • The employer could have reasonably given the employee another position within the organisation or business

If any of these incidents were the deciding factor in the loss of employment, the dismissed employee may have a claim for discrimination or another form of wrongful termination of employment.

In the instance that an employee’s position has been genuinely lost to redundancy, the employee is entitled to redundancy severance pay (aka genuine redundancy payment). The scale for such payments is based upon the number of years of service the employee has engaged in with the employer. There is a Fair Work redundancy pay calculator on their website. Please note however, that it can also be governed by an employment contract between the employee and the employer that speaks to the issue of redundancy job loss.

However, if there is no such agreement then the following guidelines are used to determine redundancy pay.

Years of Service Pay Period

  • At least 1 year but less than 2 = 4 weeks
  • At least 2 years but less than 3 = 6 weeks
  • At least 3 years but less than 4 = 7 weeks
  • At least 4 years but less than 5 = 8 weeks
  • At least 5 years but less than 6 = 10 weeks
  • At least 6 years but less than 7 = 11 weeks
  • At least 7 years but less than 8 = 12 weeks
  • At least 8 years but less than 9 = 13 weeks
  • At least 9 years but less than 10 = 16 weeks
  • More than 10 years = 12 weeks

*Keep in mind that small businesses that employ less than 15 employees do not have to give genuine redundancy pay.

In the event that your position has been lost to redundancy, there are many resources available to assist you in finding new employment. The Australian Government Department of Employment offers assistance to any worker who needs retraining or assistance in finding new employment. An initial appointment for assistance can be made by contacting their offices and scheduling a time to meet with a job counsellor.

In addition, the Australian Government Department of Human Services can also provide interim assistance to those who have lost their jobs. The department offers employment services, income support and job retraining to name a few.

If you find yourself in the position of having lost your employment, do not hesitate to reach out for immediate assistance regarding the validity of job redundancy or the impropriety of discrimination. In addition, there are services available through the Australian government that can assist in helping you find new employment, retrain for a different career path, or offer financial assistance in the form of support and planning.

Our redundancy lawyers can help you to determine whether yours is true redundancy or not. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780. Owen Hodge Lawyers are always happy to assist clients in understanding the full ramifications of any and all of your legal needs.

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