Assisting employees and employers as their redundancy lawyers in Newcastle, Sydney and New South Wales.
Redundancies can happen for a range of reasons, including new technology, changes in the market, relocation of a business, or restructuring of a business. An employee can make an unfair dismissal application if a dismissal is not a ‘genuine redundancy.’ A dismissal is a ‘genuine redundancy’ if the following criteria are met:
- due to changes in the operational requirements of the employer’s business, the employer no longer requires the person’s job to be performed by anyone; and
- the employer has complied with any obligations imposed by an applicable modern award or enterprise agreement in relation to consulting about the redundancy.
Job no longer required by the employer
From time to time, the re-organisation of the business will result in there being no duties or responsibilities left for an employee. Generally, the law allows an employer to structure their business as they see fit. The Fair Work Commission cannot take action against legitimate exercises of managerial discretion.
Redeployment of an employee
A dismissal is not a genuine redundancy if it would have been reasonable to redeploy the person within the employer’s business or the business of an associated entity. In considering whether redeployment is reasonable, the following matters should be considered:
- the nature of the available alternative position;
- if the employee has the skills and competence to perform the position immediately or with a reasonable period of training;
- the qualifications required to perform it;
- the employees skills, experience and qualifications;
- location of the new position; and
- the renumeration.
Obligations to consult with employees
Most awards and enterprise agreements require employers to follow a consultation process when they make employees redundant. These obligations could include notifying employees who may be affected, discussing measures that can be taken to minimise negative effects on employees, and considering the ideas of employees about the proposed changes. Consultation is not just providing information, but also providing employees with an opportunity to influence decision makers.
Unfair dismissal applications
When redundancies are contemplated by employers, legal requirements, processes and procedures must be carefully considered. If a dismissal cannot be characterised as a genuine redundancy, the employee may be able to make an unfair dismissal application.
If an employer receives an unfair dismissal application and believes that the dismissal was a case of genuine redundancy, the employer can object to the application. If the employer can prove that legislative requirements for a genuine redundancy have been met, the Fair Work Commission will not have jurisdiction to hear the unfair dismissal claim.
“We needed a new standard contract for our employees that complied with the relevant award conditions. We wanted a document that was short and easy to understand. Butlers drafted a standard agreement that we could use for our employees and advised on what we needed to do to comply with awards and employment legislation. The team took a practical approach and guided us through this complex area of law.”
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Our experienced team of solicitors can help you with every aspect of the enterprise agreement negotiation and bargaining process. If you need assistance with enterprise agreements or the bargaining process, email us at email@example.com or call us on (02) 4929 7002.