Redundancy can be a difficult subject for both employers and employees. Usually, redundancy occurs where there has been a change in the business environment and as a result, an employment position is no longer required to be performed. Whether an employment position being terminated is a redundancy or not is a question of law and includes the surrounding circumstances of the employment, workforce and the employer’s business. We recommend seeking qualified legal advice if you have a redundancy issue.
A genuine redundancy occurs where an employer dismisses an employee on a lawful basis due to changes in the operational requirements of an enterprise. There are strict rules about when a dismissal can be considered a genuine redundancy. If the redundancy is not genuine then the redundancy may be unfair dismissal of an employee. Unfair dismissal can be a costly mistake for a business and have a detrimental impact on the terminated employee.
Our employment lawyers provide legal advice and representation to both employers and employees for employment redundancy matters.
We can help employers determine whether a redundancy can be made in the circumstances having considered the circumstances of the business operations. Where a redundancy has been made we can assist employers with negotiations, settlement or representation where any claim of unfair dismissal has been made.
We can help employees establish if a redundancy was lawful or not and represent employees in negotiations, settlement or unfair dismissal proceedings.
Where Dismissal may not be a Genuine Redundancy
A dismissal on the grounds of redundancy may not be a case of genuine redundancy where:
- It would have been reasonable in all of the circumstances for the employer to redeploy the employee within the employer’s enterprise or a related entity.
- The employer had a duty to consult with the employee usually because of a Modern Employment Award or Enterprise Bargaining Agreement and the employer failed to consult with the employee.
Redundancy is a challenging area of employment law. The consideration of whether a dismissal is a genuine redundancy may take many factors into account. Usually, an employer can make an employee redundant where the job being provided by the employee is no longer required due to reorganisation or redistribution of duties.
Factors that are often considered in redundancy include:
- The business environment and economic circumstances
- The performance of the business which can include past performance
- What steps the business can take to make its operation more efficient before looking to redundancy
- Whether the business had a duty to consult with the employee before redundancy
- The management of the business
An employer has implied duties at law to an employee to be considerate and fair in redundancy matters. The employer must be able to prove on the balance of probabilities that the redundancy was due to operational requirements.
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