Was Your Redundancy Genuine or Disingenuous? – An Employee’s Perspective

Got some bad news at work recently? Made redundant or sacked?

Can you as an employee be made redundant, and in what circumstances?

What is Redundancy under the Fair Work Act 2009?

Section 389 of the Fair Work Act 2009 defines “redundancy” as either:

• When the employer either no longer needs the job of the redundant employee to be performed by anyone.
• When the employer becomes insolvent or bankrupt.

A typical example would be when the employer brings onboard new technology and replaces humans with robots, or when due to an economic downturn the company either slows down its activity or closes down. Redundancy can also happen for example, when an employer:

• Relocates interstate or overseas.
• Restructures itself due to a merger or takeover by a new owner.

How do you know if your employer’s action of redundancy is genuine?

This is a question of fact. The fact can be found from the employer’s conduct which is likely to become known after your redundancy is affected and you left the employer. An example of this could be a scenario whereby the employer told you that your role is no longer needed only to find out later that they hired someone else for the same role they claimed was discontinued. Other examples can include; the employer ignoring or failing to consult with you under an award or registered agreement. The redundancy could also be perceived as disingenuous if the employer was able to provide the employee with another job within the employer’s business, but it chose not to.

If you are terminated under a genuine redundancy what are your entitlements?

Section 119 of the Fair Work Act 2009 spells out your rights upon a genuine redundancy. There is a table with a defined schedule and rate to calculate your redundancy payment. There are exclusions too. For instance, if you did not have continuous employment with the employer for 12 full months, or if the employer is a small business employer, you may not be entitled to a redundancy payment.

Another example is where on the sale of a business, the incoming employer (i.e. the buyer) makes an offer of employment to the employees of the business and an employee rejects that offer.

If you are faced with a redundancy you are advised to obtain qualified legal advice to assist you to determine whether the redundancy is genuine and whether the amounts you are being paid are correct. The redundancy rights mentioned here are in addition to any of your entitlements, such as annual leave and long service leave, accrued with your employer prior to the redundancy notice.

What if your redundancy is disingenuous?

If you have proof that your redundancy is disingenuous you may be entitled to lodge an unfair dismissal claim with the Fair Work Commission. You have 21 days after the day you are notified of the redundancy/dismissal to apply to the Fair Work Commission for unfair dismissal. If the facts support your claim that you have been unfairly dismissed, you may be entitled to reinstatement and when appropriate receive your lost pay. Again you are advised to seek qualified legal advice to assist you to determine your legal position and if necessary enforce your rights. This can benefit you by, amongst other things, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue, and more importantly, that your claim is lodged within the prescribed time.

If you or a loved one has recently lost their job, it is worth speaking with an experienced employment lawyer to ensure your rights are enforced on 1800 217 217. 

Article Source: Disingenuous