Workplace & Unfair Dismissal News

Workplace Mental Health

COVID-19, EMPLOYMENT & YOUR MENTAL HEALTH – WHAT CAN YOU DO?

With unemployment on the rise and showing no signs of slowing, what can you do to protect your job, avoid being dismissed and safeguard your mental health?

What is happening to employment during the COVID-19 pandemic?

The coronavirus pandemic is taking many more victims than just those who contract the virus. COVID-19 also carries in its wake drastic economic impacts, which in turn have caused a massive increase in redundancies, unfair dismissals, terminations and forced resignations. The domino effect of widespread business shutdowns, particularly in Victoria facing Stage 4 restrictions, is sending ripples through society – and our mental health will incur the ramifications.

If it wasn’t enough that the fear of catching coronavirus has plunged many into an ongoing state of worry and anxiety, coupled with frequently updated restrictions on going about daily life; once you add unemployment, or the threat of unemployment to the mix, it seems quite challenging to cope with it all.

What may happen to the mental health of laid-off workers?

Loss of a job or ongoing workplace issues fueled by pandemic panic is enough to exacerbate pre-existing mental health issues. However, in these unprecedented times, even those without any pre-existing conditions are not immune to mental health concerns. COVID-19 has already been linked to numerous mental health issues, including anxiety, stress, depression and insomnia.

A 2009 European study amid the Global Financial Crisis (GFC) found that every 1% increase in unemployment was correlated with a 0.79% increase in suicides in persons under the age of 65. Now, in 2020, the COVID-19 pandemic threatens to exacerbate mental health issues and suicide risk factors, which have the potential of causing a long-term rise in suicide rates.

The effect of the pandemic on mental health, as well as employment prospects, will not just be confined to the tumultuous year of 2020. Ordinarily in Australia, there are over 3000 suicides each year. However, it is projected that due to COVID-19, there may be a 25% annual increase in suicides for up to the next five years. This equates to an additional 750 to 1000 lives lost each year as a result of the coronavirus crisis. Studies show that those workers in geographical locations and sectors most affected by job losses, such as in rural and regional Australia, will be most greatly affected.

Young people are also projected to be significantly affected by coronavirus job losses, as a large proportion of them constitute the casual workforce in Australia (many have been casuals for years, with house and car payments) – usually some of the first to be let go when there has been a stoppage or slowing of work. Lost income and difficulty obtaining alternative employment may cause immense psychological and financial stress.

What can you do to safeguard your mental health?

It is easy to get caught up in the tumult of the world around us, but it is important to remember that if you do unfairly lose your job, you have options. If you believe your redundancy was not genuine, that you were forced to resign or you were unfairly dismissed, you may be able to seek compensation through pursuing your matter through the Fair Work Commission.

If you haven’t lost your job but you are facing ongoing issues in the workplace, particularly sexual harassment and discrimination, you also have options for redress. No-one should be made to feel unsafe or uncomfortable in the workplace, and your mental health should not be made to suffer, simply to keep your job. There is no doubt some employers will try and take advantage of the situation, pay you less, make you work harder, long hours, sexual harassment is increasing. What will some employees put up with to keep their job?

As experienced workplace advisors and representatives, we can help you obtain justice and support. By seeking advice and advocacy, you can put your emotional and psychological fears at bay. COVID-19 has caused tough times for all Australians, but you are not alone in your struggle. If you have unjustly lost your source of income, or you are facing ongoing issues in your workplace, we are here for you and we will fight for the outcome you deserve. Your mental health and wellbeing in the workplace is our priority.

Call us now on 1800 333 666 to speak to someone about whether you have a potential Unfair Dismissal or General Protections claim, or to just chat about your workplace situation.

Who Has the Fairest Unfair Dismissal laws?

“Equality is not a concept. Its not something we should be striving for. It’s a necessity. Equality is like gravity. We need it to stand on this earth as men and women, and the misogyny that is in every culture is not a true part of the human condition. It is life out of balance, and that imbalance is sucking something out of the soul of every man and woman whos confronted with it. We need equality” – Joss Whedon.

Equality is about ensuring that every person, including employees, have an equal opportunity to make the most of their lives and jobs. This belief stands regardless of their upbringing, their beliefs, their background or if they have a disability, every employee has the right to go to work without the fear of being treated unfavorably or unfairly. This right stands from the moment they are hired and transpires right through their employment at the company. In the circumstance where an employee may find themselves dismissed or decide to leave their employment they should do so where it is equitable and fair.

Unfair dismissal is when an employee is dismissed from their employment or are forced to resign by their employer in an unreasonable manner. A common cases of unfair / unlawful dismissal is where an employer may terminate an employee because of a protected attribute, such as their age, race, sex or sexuality.

Shockingly, it is also quite common for employers to terminate employees without warning or any reason. This is not only unfair, but a distortion of justice for all employees.

In Australia, the Fair Work Act 2009 covers the federal industrial relations system and sets out the minimum workplace protections employees and employer obligations. Beneath this Act, an unfair dismissal application can be filed with the Fair Work Commission. Luckily in Australia we have such an Act enacted and employee advocates, such as A Whole New Approach, who assist employees fight for their rights. However, what about those countries who do not have such laws protecting employees from being unfairly dismissed?

In Deloitte Legal Perspective’s (2018) global study into the specific dismissal rules of 45 counrties and their compliance formalities found that in over 75% of these surveyed countries, an employer is free to dismiss an employee but they must reinstate this employee where the dismissal reasons are deemed unjustified. Where upfront approval is only required by the Netherlands and Ecudor. A common ground of protection against these dismissal was found within certain categories of employees, such as pregnancy, was present in almost all countries.

Shockingly in a number of other countries, the employer is left with the dangerous and absolute power to dismiss an employee without any possibility of reinstatement. In almost all these countries, the length of service within a certain company is the key factor in determining the level of dismissal cost with a capped notice period and/or severance. In Brazil, Colombia and Ecuador countries, termination is only possible for the reasons stipulated or prohibited by the law, where this notice period and/or severance is not required.

Those counties in the European Union have employment laws that protect the rights of their workers, and include:

• Working time, part-time and fixed-term work.
• Protection from discrimination and equal pay rights.
• Consultation with employees on workplace matters, such as redundancy.
• Protection of employee’s rights and personal data.

However, these employment laws remain silent upon unfair dismissals. Leaving us with the question of which country has the most equitable unfair dismissal laws, if any at all, and what this means for employees rights.

Unfair Dismissal Laws in Greece

In Greece, the rules and laws that govern their employees is based upon the distinction between ‘white-collar worker’ and ‘blue-collar worker’. White-collar employees stereotypically are suit-and-tie employees, who work at a desk and perform more intellectual work. Meanwhile, blue-collar employees stereotypically refer to those engaging in hard manual labor.

Where beneath this system, the emplopyment contract for a white-collar worker is for an indefinite period, which may be terminated by the employer at any time through paying notice in lieu and/or a notice period. However, if this employee has not been with the company for more than 12 months no notice in lieu and/or a notice period is required.

In comparison, while the employment contract for a blue-collar worker is also for an indefinite period it can be terminated by the employer at any time through paying notice in lieu. No notice period is required.

“The flaw in our character is our insistence on separating blue-collar jobs from white-collar jobs, and encouraging one form of education over another” – Mike Rowe.

In Australia we have an Award (modern awards) system to which is a legal document that outlines the minimum pay rates and conditions of employment dependent on the industry they work in and the type of job they work. The key difference here is that we do not discriminate based upon this ‘white-collar worker’ and ‘blue-collar worker’ stereotype. Where historically these stereotypes have implied higher and lower social classes between the two, as it is often presumed that white-collar employees have a higher level of education and skills due to the nature of their work. For the foundations of an employment system to be based upon these stereotypes and presumptions alone is an injustice.

These indefinite term employment contracts do not set a time period for the life of the contract or a procedure for the dismissal or termination.

Quite often when an individual lands a new job, its extremely exciting for them as comes new responsibilities and experiences. Now imagine landing a job that does not have a specific date or timeline when the employment relationship is to end. A job that could last forever, sounds ideal right? Wrong.

According to Greek law, the only specific dismissal protections an employee is entitled to are for the following employees:

• Unions’ founding memers and current union officials;
• Disabled employees;
• Vacation leave period;
• Pregnant womens;
• Employees, who have been conscripted for military service

Furthermore, not only are these protections very limited but it is not necessary for the employer to give reason for the termination of an employee on an indefinitie term contract. Therefore leaving many Greek citizens left unemployed without any reason as to why by there employer.

No doubt this is the reason why Greece reports the highest unemployment rate of all EU states. Where Statista (2020) reported that in 2019, the unemployment rate in Greece was around 17.24 percent. In fact, Greece is ranked on top of all countries in the European Union with the highest debt-to-GDP ratio. As a result, Greece has had financial assistance from several countries to decrease their national debt and increase productivity. Although the country has seen a significant improvement in their rates of unemployment, to which Statista (2020) reported were a shocking 27.47 percent back in 2013. However regardless of this improvement, this serious issue of unemployment in Greece is still in existence and is actively affecting the economy.

Prehaps the real lies where if Greece had fairer employment laws requiring employers to give reason as to terminate their employees, the unemployment rate would be much lower.

Unfair Dismissal Laws in France

French Law prescribes that in order for a dismsal to be valid it must be based on a real and serious cause to which must be exact, precise, objective and of a serious nature to justify the dismissal.

In France, there are two types of dismissals:

• Dismissal for individual reasons, such as for misconduct or poor performance.
• Dismissal for economic reasons, such as those unrelated to the dismissed employee and results from job cuts, job transformation or a change in the employees employment contract to which they refuse. These changes may arise from economic difficulties, technological changes and other uncontrollable factors.

When a permanent employment contract has been terminated by the employer, a notice period must be served by the employee. However, the employer may choose to release the employee from this notice period through payment in lieu of notice. However, in a case of dismissal for serious or gross misconduct this is not required.

Where an employer wishes to dismiss an employee, they must comply with the specific rules and procedures including:

• The employer must invite the employee that they wish to dismiss to attend a preliminary meeting by a registered letter.
• This letter must inform the employee that they may be assisted during this meeting by an employee of the company.
• During this meeting, the employer must clearly inform the employee that their dismissal is under consideration and the reasons as to why.
• In the circumstance that the employee is terminated, they must be notified of their dismissal by a registered letter and acknowledgement of receipt.

The onus is on the employer to prove the seriousness of the grounds and reason for the dismissal, based upon material evidence. Any kind of dismissal must be based upon a real and serious reasons, or as they say in France, cause reelle et serieuse. If the employer is unable to provide this evidence, the employees dismissal will be granted as unfair.

According to French law law, the only specific dismissal protections an employee is entitled to are for the following employees:

• Staff representatives;
• Former staff representatives;
• Employees appointed by a trade union or from a company;
• Pregnant women;
• Disabled employees;
• Employees elected to local, national or EU elections.

Where this dismissal is deemed as unfair, employees are entitled to damages depending on the loss suffered. Where the minimum amount of compensation is set at six months salary for employees with at least two years service, with no maximum prescribed by law.
There is no doubt that France’s rules of unfair dismissal are rather strict and rely heavily upon the employer providing evidence as to why they terminated the employee. Although this may seem advantageous, as it requires an employer to evidentially show cause, it adversely makes it near impossible for an employer to dismiss an employee.

Quite often employers are left in a position where an employee may be underperforming or engaged in an act of serious misconduct. However, they do not have the factual evidence to demonstrate this because of rules governing the admissibility of evidence. Such as here say not being allowed, or perhaps a witness who also was an employee being afraid to testify against another colleague. Thus, making it near impossible for employers to terminate employees, these French laws that require such an objective and exact test.

Interestingly, Macrotrends (2020) reported that in 2019, the unemployment rate in France was 8.43%. Although this is not as large as Greece, they are still rather high. Thus, perhaps if the French unfair dismissal laws allowed for employers to get rid of employees who do not deserve to be in the role, and instead gave the opportunity for those who do this rate would be much lower.

Unfair Dismissal Laws in Australia

In Australia, an employee who feels as though they have been unfairly dismissed can make a claim and take action beneath the Fair Work Act 2009. Once an unfair dismissal application has been filed, the Fair Work Commission deals with the matter.

A person can only make an unfair dismissal claim if they are covered by a Modern Award or if an enterprise agreement applies to them and have completed the minimum employment period. To which is one year for employees of a small business (ie a business with less than 15 employees) or six months for an employer who is not a small business.

The Fair Work Commission will be satisfied an employee has been unfairly dismissed where:

• The employee has been dismissed;
• The dismissal was harsh, unjust or unreasonable;
• The dismissal was not a case of genuine redundancy;
• The dismissal was not consistent with the Small Business Fair Dismissal Code, if the employer is a small business.

Unfair dismissal claims initially begin as a telephone conciliation conference between the employer, the dismissed employee and any of the parties representatives. If unsuccessful, the claim will be heard before a member of the Fair Work Commission in an arbitration hearing. To whom will decide whether this dismissal was ‘harsh, unjust or unreasonable’.

The Fair Work Commission will look at a number of criteria when considering whether a dismissal was harsh, unjust or unreasonable, including the following:

• Whether there is a valid reason for the dismissal of the employee, which is related to their capcity or conduct;
• Whether the employee was notified of this reason;
• Any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to the dismissal;
• If the dismissal was related to unsatisfactory performance by the employee, whether the employee was warned by their employer about that unsatisfactory performance before the dismissal;
• Any other matters the Fair Work Commission finds relevant.

If an employee has been found to have been unfairly dismissed, remedies will be available including:

• Reinstatement;
• Compensation (capped at 26 weeks pay);
• Non financial remedies (such as a statement of service).

Commentary

In Australia, it is necessary for employers to ensure employees are provided procecedural fairness when dismissing employees. There is no doubt that Australia has a fair and just protection for employees through the Fair Work Act 2009. To which no employer cannot dismiss an employee for a prohibited reason, unlike in Greece where no reason needs to be provided for those on indefinite employment contracts. Yet, these rules and laws are not as challenging and harsh compared to France where it is near impossible for an employer to terminate an employee. Thus, explaining why the Australian Bureau of Statistics (2019) reported in 2019, Australia has the lowest unemployment rate out of all these countries at a steady 5.3 percent.

If you have received notice from your employer that your employment has been terminated, or you have been forced to resign, you should seek independent advice as you may be able to make an unfair dismissal claim against your previous employer.

At “A Whole New Approach”, we believe all employees have the right to be treated with the fairness and justice they deserve. This right stands regardless of their upbringing, their beliefs, their background or because of their sex, race, age or another protected attribute. Every employee has the right to go to work without the fear of being treated unfavorably or unfairly. This stands from the moment they are hired all the way through the ceasing of their employment at that company.

When an employee believed they have been terminated without a valid reason, or without procedural fairness we fight for their rights. To which we have over 20 years experience in lodging Unfair Dismissal Applications to the Fair Work Commission and ensuring our clients obtain the settlement they deserve.

If you would like to discuss a potential application, or for advice please call us for a free consultation on 1800 333 666. Please keep in mind an application of unfair dismissal must be lodged within 21 days of your dismissal. Don’t wait until the last moment to fight for your rights as an employee, as it may be too late.

“The only impossible journey is the one you never begin” – Tony Robbins

BIBLIOGRAPHY:

1 Deloitte Legal Perspectives 2018, International Dismissal Survey, Deloitte Legal Perspectives, retrieved 22 July 2020

2 Statista 2020, Unemplpoyment rate in Greece 2019, Statista, retrieved 23 July 2020

3 Macrotrends 2020, France Unemployment Rate 1991-2020, Macrotrends, retrieved 23 July 2020 .

4 Australian Bureau of Statistics 2019, Trend unemployment rate steady at 5.3%, Australian Bureau of Statistics, retrieved 23 July 2020

5 World Health Organization 2020, Coronavirus, World Health Organization, retrieved 24 July 2020

6 Australian Bureau of Statistics 2020, Employment falls 594,300 in April to 12.4 million, Australian Bureau of Statistics, retrieved 24 July 2020.

REDUNDANCY: WEALTHY MULTI BILLION DOLLAR COMPANIES MORAL OBLIGATIONS AND CONTRIBUTION

“What the world needs now is solidarity. With solidarity we can defeat the virus and build a better world” – United Nations Secretary – General Antonio Guterres.

The coronavirus (COVID-19) pandemic is an ongoing global pandemic, to which is one of the most precedenting and uncertain times in all our lives.

As the World Health Organization (2020) explains, the coronavirus is an infectious disease which mainly affects the respetatory system. Where many countries, including Australia, have spent hundreds or billions of dollars in attempt to stop the spread. Not only have we seen it have a massive strain upon our health system, but also our economy. Aa a result, both business owners and employees are left to suffer from the economic impact the virus has had on many levels.

As months, even weeks and days pass by during the coronavirus pandemic and lockdown companies are being forced to cut jobs, or even shut their operations overall. According to the Australian Bureau of Statistics (2020), in April 594,300 people lost their jobs due to the coronavirus and restrictions placed by the Government. The following month the Australian Bureau of Statistics (2020) reported another 227,700 jobs were cut due to the coronavirus.

Many businesses rely on customers physically visiting their premises, especially those within the hospital and retail industries, such as café owners. Therefore, having the Government restrictions in place that enforce the 1.5 meter social distancing rule, mandatory sign-ins, prepared COVID-safe plans and capping the number of patrons allowed inside venues in hope to stop the spread. Especially even more so in Victoria, where the state is currently in Stage 3 restrictions where citizens are only allowed to leave their homes for ‘essential’ reasons, with cafes and restaurants only being allowed to offer food and drinks take-away. As a result, these businesses are left suffering as there is no option for their employees to work from home or at all beneath these restrictions.

Although there is the JobKeeper Payment from the Australian Government to help more Australians in the workforce and support businesses affected by the economic impact the Coronavirus has. On 21 July 2020 the Government announced further restrictions upon eligibility and payment rates. Therefore, despite this JobKeeper Payment scheme, if an employer is not eligible to redeploy their employees and minimize the cost of operating their company they are left with the difficult decision to have to make certain roles within their companies redundant.

Redundancies

Redundancies occur when an employer decides to reduce their workforce because a job or jobs are no longer required.

There are many reasons why a company may decide to make an employee redundant, to which is no reflection upon the employees ability to perform a role but rather:

• New technology making the role unnecessary;
• The role the employee was hired to complete no longer exists;
• The employer needs to cut costs by reducing staff numbers;
• The business is restructuring;
• The business is closing down or moving;
• The business has been bought by another company;
• There is a significant or delayed downturn in business.

Likewise, a company may decide to make an employee redundant due to the unfortunante effect the Coronavirus has had on their business. Where as a result the role is no longer necessary or the business cannot afford the role anymore. However, this redundancy must be genuine. Beneath the Fair Work Act 2009, an employee can make an application of unfair dismissal to the Fair Work Commission where they believe their dismissal was not a genuine redundancy.

What is a genuine redundancy?

To be eligible for an unfair dismissal claim, they must ensure they are covered by a Modern Award or if an enterprise agreement applies to them and have completed the minimum employment period. To which is one year for employees of a small business (ie a business with less than 15 employees) or six months for an employer who is not a small business.

A genuine redundancy is where an employee is being dismissed as the employer does not require their role to be filled anymore. Furthermore, a redundancy will be genuine where the employees role cannot be performed by anyone due to changes in the operational requirements of the company.

A redundancy will not be genuine if the employer:

• Still requires the employees role to be done by someone;
• Could have reasonably, within the circumstances, provided the employee another job within the employer’s business;
• Has not followed the consultation requirements as required by the relevant Modern Award of enterprise barganining agreement.

Not only is it important that if an employer decides to make a role redundant, that it must be genuine but also that consultation process took place. The consultation process outlines the things that the employer needs to do when they decide to make changes to the company that will likely cause redundancies to take place. This must occur as soon as possible after this decision has been made.

What does consultation require?

The consultation requirements include the employer:

• Notifying the employee who may be affected by this change;
• Providing the employee with information regarding this change and the expected effects;
• Disclosing the steps taken to avoid and minimize the negative effects on the employee;
• Considering the employees ideas or suggestions regarding this change.

Interestingly, in the decision of UES (Int’l) Pty Ltd v Harvey, an employee was made redundant due to the employer not requiring this role anymore as there was a decline in business. However, it was found not to be of a genuine redundancy, as the employer did not consult with this employee.

Are there any alternatives an employer can take before considering redundancy?

A redundancy should always be an option of last result. An employer should value their employees and their hard work, especially during these harsh times the pandemic. Therefore, instead an employer can consult their employees about the following options:

• Taking leave, for a specific period an employer can ask an employee to consider taking out paid leave or unpaid leave, whilst the business is placed beneath these restrictions or otherwise applicable.

• Job sharing with another employee or part-time work, an employer may ask an employee to change their employment contract hours down to part-time or share the hours and duties with another employee.

• Reducing in hours or pay, an employer may ask an employee to reduce the amount of hours they are working at the company or take a temporay pay cut. However, these reductions must still meet or be above the minimum requirements of the Modern Award system.

• Non-contractual benefits, an employer may decide to reduce or stop the monetary benefits they provide to their staff as an attempt to lower costs and expenditure. This may include bonuses, company cars and etc.

These options need to be agreed with both the employer and the employee. If an employer changes the conditions of an employees employment or force them to agree to do so, they will be able to take action against this employer.

Coronavirus, Redundancies and The Role Businesses Play

There is no doubt that the Coronavirus pandemic and the restrictions placed by the Government have had a massive impact upon businesses, especially those small business owners. Where they cannot afford to pay rent, utility bills as well as employees wages, just to make a few take away coffees a day. Especially on weekends, where they must pay penalty rates up to two times the award rate. These small businesses are suffering at the hands of these restrictions.

However, how about those extremely wealthy billion dollar companies who have no legal or moral obligation to keep their employees employed. Where despite having the financial means to do so, after decades of making money. At the first opportunity they see to reduce their payroll, they do so and claim it is a “genuine redundancy”.

In recent news, there has been news of various billion dollar companies who have announced job losses so far, including the following:

• Virgin: After being placed in voluntary administration back in March, the company had to stand down over 80% of its employees. Where these employees have not been told when they can return, if ever.

• Qantas: In June, the company announced they would permanently cut more than 6,000 jobs due to the strain the coronavirus pandemic has had on the company. The jobs being cut include office roles, cabin crew, engineering roles and pilots. This announcement came as a shock to the public, especially after Virgin were placed into voluntary administration and leaving Australian’s with no choice but to fly with Qantas.

• Flight Centre: Due to the closure of international borders and the Government restrictions, Flight Centre have temporarily stood down or making redundant 3,800 Australian sales and support staff. Although the company also made those staff working offshore redundant, how many remain? Did they decide to cut the work of hard-working Australian employees before those cheaper, off-shore employees?

• Woolworths: In June, Woolworths made the announcement that the automation of its warehouse would eliminate about 700 jobs in both Sydney and Melbourne. How is it that a company who made money off Australian’s stock piling toilet paper earlier in the year are now cutting jobs of Australian’s during a pandemic when they need it most.

• Myer: Last month, Myer announced that they were cutting 90 jobs in head office whilst they try and get through the coronavirus sales downturn.

• Target: The Wesfarmers group announced in May that they would be turning up to 167 Target and Target Country stores into Kmart, or just shut down. Where subsequently, they would be reducing up to 1,300 roles over the next year. There has been discussion for years regarding the triumph of Kmart over Target, however why is it now during a pandemic that the group decide to shut down Target stores?

• Big Four Professional Services Firms: Recently, PwC announced they would be cutting around 400 employees from their financial advisory, support and consulting sectors. This represents around 5% of its workforce within Australia. Similarly, Deloitte announced that they would be cutting 700 from 10,000 employees in Australia, due to the Coronavirus pandemic causing a decrease in revenue and operating profit. Lastly, despite majority of KPMG’s Australian workforce agreeing to accept a 20 per cent pay cut, they further cut 200 consulting jobs.

Commentary

“I have been made redundant before and it is a terrible blow; redundant is a rotten word because it makes you feel useless” – Billy Connolly.

Under any circumstance, being made redundant is never ideal for any employee. Where employees spend years, even decades working at a company. They work hard and give these companies their all. Some employees even miss out on their children’s birthdays, or other important milestones in their lives as they are hardworking and dedicated to their job. Just to be told in the end they are no longer required.

The ongoing coronavirus pandemic has a destructive impact upon our economy, both domestically and internationally. Where the Governmental restrictions placed in attempt to stop the spread of the virus, has had a massive impact upon both employers and employees alike. Where companies are being forced to cut jobs, or even shut their operations overall. Although there are Government incentives, such as the JobKeeper Payment to help Australians within the workforce and support businesses affected by the economic impact the Coronavirus has. Not all employees or business owners are eligible. Thus, leaving many employers with the difficult decision to have to make certain roles within their companies redundant.

Where an employee has been made ‘genuinely redundant’, then this will be viewed as a valid reason for a dismissal. Similarly, employers are required to consult with their employees before making the decision to make a role redundant. However, sadly this is not the case for many hard-working Australian employees. Where they are not offered the opportunity to relocate, or perhaps reduce their hours. Rather, they are shown the door and left without a job during a global pandemic, with bills and a family to support.

Time and time again we see employers using factors ‘out of their control’, such as the Coronavirus, to give grounds for redundancies. This may be to push out an employee to save costs, or because they are older, injured or ill. This is not only an injustice to the Australian workforce, but just straight outrageous.

What is even more shameful are the extremely wealthy billion dollar companies who use the first opportunity they see to reduce their payroll, and claim it as a “genuine redundancy”. Yes there are small businesses who cannot afford to pay their staff penalty rates just to make a few take away coffees, due to the coronavirus restrictions. But how about those companies who have spent decades generating gross amounts of revenue and operating profit. Those who can afford to do the right thing and keep their employees on the payroll, and yet decide not to. They decide to make thousands of Australian jobs redundant, while often keeping those cheaper off-shore jobs employed. Leaving these hard working Australian’s without any means of income during a global health pandemic. Where not only will they struggle to financially support themselves and their families, but the prospect of finding a new job is unlikely. Due to the increase of unemployment.

Here at “A Whole New Approach”, we receive calls daily from employees of companies with 10 – 20 years of service. Where many of these employees are in their 50’s, feeling as though they are unlikely to be able to be re-employed, especially during a pandemic. What all these employees share is the feeling of confusion, many even blaming themselves and questioning what they did wrong?

However, the answer is nothing, they have done nothing wrong.

If you or someone you know has been made redundant from their job, due to the coronavirus there is a good chance that it may not be a genuine redundancy. Similarly, if you were made redundant due to the virus without consultation or were replaced shortly after, this is not a genuine redundancy.

Rather, it may have been an attempt for an employer to cover up the real reason for wanting to terminate this employee. Such as to cut their payroll costs, or perhaps they are discriminating against this employee upon grounds of a protected attribute such as their race, sex, age, disability, marital status or family/carer’s responsibilities. If so, this employee may be eligible for an Unfair Dismissal Application to The Fair Work Commission.

If you would like to discuss a potential unfair dismissal or unlawful termination application, or for advice please call us for a free consultation on 1800 333 666. You have nothing to loose. Please keep in mind an application of unfair dismissal must be lodged within 21 days of your dismissal.

Don’t wait until the last moment to fight for your rights as an employee, as it may be too late.

“Action is the foundational key to all success” – Pablo Picasso

Redundancies and Now

In the age of COVID-19 and the uncertain times ahead for the Australian economy, we are seeing jobs being made redundant left, right and center. Some are genuine, some may not be. In consideration of the impending recession, the previous difficulty of proving whether a genuine redundancy has occurred or not, has become infinitely harder to establish. In saying this, we still encourage individuals to exhaust all their options and arguments to protect their jobs if they have been made redundant, and to do so by calling us for a free consultation to determine whether you can retain our advisory and representative services for your redundancy.

However, we at A Whole New Approach are not writing this article to focus on what to do after a redundancy occurs, but what you can do before a possible termination of your employment. With the collective sentiment to save our jobs and prevent further losses of jobs and livelihood, we implore workers in Australia to realize the seriousness of our economic situation and act on it. This means that you should act sensibly when following your employer’s reasonable requests to work an additional shift per week or to pick up extra responsibilities that are within your capabilities. As long as your employer is being reasonable – and that is the key word – you should do everything in your power to stay within your employer’s good books to protect yourself from financial hardship after being dismissed for failing to follow reasonable direction.

Allot of employees are made redundant, whether fairly or unfairly because of the lack of flexibility by them in the workplace, its a a new era in the workplace now. The days of that’s “not in my job description”. “I’m not paid to do that” are gone.

Although it is uncertain times for employees, it is equally, if not more uncertain times for employers – particularly that of small businesses. Therefore, it would not hurt for employees to be considerate to their employers also and to think about whether the industry you are working in has potentially suffered under the pandemic, same as yourself. This mutual understanding between employee and employer will undoubtedly benefit you in giving you the best chance of retaining your job through the hard times and coming out on the other side for the better.

Our firm receive a multitude of calls weekly where Australian employees ask whether it is within their right to reject their employer’s requests. We have received calls from a health care professional working in an aged home wondering if she could be terminated for refusing to take the mandatory flu shot provided by the employer and casual employees benefiting from the JobKeeper subsidy inquiring whether it’s okay for them to refuse to work a couple more hours than their previous average before COVID-19 times. The answer we will always give is this – Be. Reasonable. If the employer is being genuine in their request, you should give them the benefit of the same treatment. We should all help each other, as people who all live in Australia, in the collective effort to survive these hard and trying times and to come out stronger. Avoid (if possible) the redundancy list!