Fair Work Act 2009 s.389 states
An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy.
A dismissal is a case of genuine redundancy when:
1) The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise,
2) The employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.
3)A dismissal is NOT a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within:
the employer’s enterprise, or
the enterprise of an associated entity of the employer.
IF the employer has not complied with the “three arms” to S389 then it is not a genuine redundancy and a unfair dismissals or general protections application can be lodged, be aware of the very strict 21 days from your termination to do so.
What is a Genuine Consultation?
Consultations must be genuine and not perfunctory. They should be meaningful and engaged in before an irreversible decision to terminate has been made. The purpose of a consultation is to facilitate change where that is necessary, but to do that in a humane way which also takes into account and derives benefit from an interchange between worker and manager.
Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.
A redundancy can be a bad redundancy, but still be a genuine redundancy, Employers make the wrong Employees redundant all the time. What they cannot do is target you because you have complained about something, you’ve been on Workcover,
your pregnant, to simply replace you with a lower paid worker, to simply rename the position. The list is endless. You do not have a position for life, its all about the reason, off course the Employer will always say it’s the recession, the technology has changed, upskilling. etc, etc.
It’s what you know. (check on-line to see if your position or similar position is advertised). Why are you targeted? With the current recession, it can be sometimes referred to as pay back, perceived troublesome Employees have to go, older, injured, ill, ones insisting on being paid properly.
Why if you’re a good loyal, productive employee would they really get rid of you. It’s all about the motive, as to why would an Employer go to the time and cost to get you out of their business. Give us at A Whole New Approach P/L a call to work through your situation.
Consultation is more than the Employer telling you they are making you redundant and they have had a look around and there is nothing else for you. Consultation has to be legitimate, in advance of the potential redundancy, and allows for your input, and the Employer has to consider your input, before the decision is made.
Maybe you will take a lower position, maybe you have experience, skills or qualification’s the Employer is unaware of, it’s your absolute right to have those discussions in advance of the potential redundancy.
Redeployed, if its larger company clearly there may be options, the Employer may still be employing casuals, contractors, staff still in their probation period, why weren’t you offered these positions, you may have been prepared to travel, reskill with little effort, that’s why consultation is important.
Some Employers indicate now that we are making you redundant, can you resign, under no circumstances do you resign, get advice first.
Redundancy entitlements can be allot of money, explore your options.
This commentary is short and meant to start the process of you deciding is there anything you can do about your redundancy situation. Ring us anytime,
“Knowledge is power, without it we become ignorant towards the truth.”
― Hopal Green