Redundancy – Is it genuine?
During these times of economic uncertainty, redundancy could, understandably, be on your mind. As a business owner, you might be faced with the difficult decision to reduce employee numbers. If you are an employee at risk of redundancy you may be wondering what your options are.
In either case, it is important to understand whether any redundancy is a “genuine redundancy”, or a termination on other grounds. If a termination is a case of genuine redundancy, and the proper steps are followed, then the ensuing dismissal will not be unfair.
A genuine redundancy occurs where:
- the employer no longer needs the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
- the employer has complied with any obligation to consult with the employee about redundancy (if an award or enterprise agreement requires consultation about major workplace change); and
- the employee could not be reasonably redeployed in the employer’s enterprise or that of an associated entity.
Changes in redundancy requirements
There are many things that might happen in a business which could be described as a “change in operational requirements”. It is a very broad concept. Some examples include:
- a downturn in trade that reduces the number of employees required;
- technological development;
- restructuring a business for the sake of efficiency, which reduces the number of positions available;
- closure of the business; or
- outsourcing of the employee’s role.
The key question is whether anyone needs to do the employee’s job in the face of the organisational change. It may be that a particular job is no longer required to be performed even if some of the duties associated with that job are still being performed by other employees or have been outsourced to contractors.
Redundancy consultation
There is usually a requirement in modern Australian awards and enterprise agreements for an employer to consult with affected employees about impending redundancy.
Where an employer has an obligation to consult, it is very important that the obligation is fulfilled. Even if all other requirements have been met, a redundancy can still be an unfair dismissal if the proper consultation process is not followed.
Redeployment or redundancy
The final question is, whether it would be reasonable to redeploy a redundant employee into another role, instead of making the employee redundant. Relevant factors include:
- if any other job is available and, if so, the nature of that position;
- the qualifications and experience required to perform the job;
- the location of the job in relation to the employee’s residence; and
- the remuneration which is offered.
If thinking about, or faced with redundancy, make sure that it is a genuine redundancy. A failure to implement and follow a proper process of evaluation and consultation may raise the prospect of unfair dismissal, and the legal remedies and ramifications that go along with it. If you have any queries, talk to our experienced team today on 4036 9700.
Please note these comments apply to employees covered by the Fair Work Act redundancy provisions.