Restructuring and Redundancies for Employees

Fixed Fee Consultation
We understand what processes employers must follow when implementing change, and ensuring that employees receive their correct, legal entitlements if a redundancy occurs.

Restructuring and Redundancies for Employees

Fixed Fee Consultation
We understand what processes employers must follow when implementing change, and ensuring that employees receive their correct, legal entitlements if a redundancy occurs.

What You Need to Know if Redundancy Affects you

While workplaces must continue to change and evolve to be sustainable, any restructure of a workplace can be a difficult and stressful time for affected employees.

If you find yourself in the position where your employer is implementing change, and redundancies are possible, it is important that you understand your rights during any restructure process, and your entitlements if your position is affected.

Peters Bosel Lawyers have significant experience in helping employees understand what processes employers must follow when implementing change, and ensuring that employees receive their correct, legal entitlements if a redundancy occurs.

What is the proper process for a redundancy?

Your employer is able to change the structure of an organisation, re-allocate tasks and/or remove positions entirely at any time as long as they follow a fair process, and they meet the consultation requirements of the modern award (and/or enterprise agreement) which applies to your employment, any terms of your contract which are relevant, any internal policies which apply and importantly the Fair Work Act 2009.

If you are an employee covered by a modern award, your employer will be required to follow detailed consultation provisions in the event that your position may be affected by a restructure. Such consultation will ordinarily involve meeting with you in person to discuss the proposed changes, provide you with information concerning the basis for the change and allow you an opportunity to provide your feedback as to whether or not you should be terminated and, if so, how best to mitigate the impact of your termination, prior to making any final decisions. Even if a decision is ultimately made to make your current position redundant, before lawfully terminating you on the basis of redundancy, your employer must also be able to show that it was not reasonable to redeploy you to another position within the business you currently work in, or any other related enterprise of your employer.

Importantly, if employers do not follow the requirements of the Fair Work Act 2009  concerning “genuine redundancy”, then there is a possibility that any termination of employment due to the redundancy could be considered to be an unfair dismissal.

What is a genuine redundancy?

To be a genuine redundancy, an employer must be able to show the Fair Work Commission that:

  1. The redundant position is no longer required to be performed by anyone;
  2. The employer has strictly complied with any obligation in any modern award or enterprise agreement to consult with the affected employees; and
  3. It would not have been reasonable in all of the circumstances for the employee to be redeployed either otherwise within the employer’s business, or within the business of an associated entity.

Peters Bosel Lawyers regularly assists employees in assessing the genuineness of a redundancy in order to determine whether employees have grounds to make an unfair dismissal claim.

What are your entitlements if you are terminated due to the redundancy of your position?

If it is the case that your employer has followed the requisite consultation provisions, and has otherwise been able to demonstrate that there has been a genuine redundancy, you may be entitled to redundancy severance pay, in addition to notice of termination of employment.

As a starting point, reference must be made to any modern award, enterprise agreement and/or contract of employment that applies to you. If you are covered by a modern award, there will be provision for redundancy severance pay, based upon the National Employment Standards (“NES”). The NES provides a sliding scale for redundancy severance pay, which depends on the length of your employment.

It is important to note, though, that some employees have no entitlement to redundancy severance pay.

Those employees who have no entitlement to redundancy severance pay include employees:

  1. who are employed by a “small business employer”. A “small business employer” employs 15 or less employees;
  2. who have been employed by the employer for less than one year;
  3. employed for a set period of time, an identified task or project or a particular season and those time frames, tasks or seasons have concluded; and
  4. casual employees.

Regardless of whether you are entitled to redundancy severance pay, you will be entitled to payment of all other statutory entitlements on termination including (where applicable), notice of termination of employment (if not required to work the notice period), accrued annual leave and accrued long service leave.

Peters Bosel Lawyers are able to assist you in determining if you have received all of your entitlements based upon the terms of your employment.

What if you think that the redundancy of your position is not genuine?

In some circumstances employees do not agree that their position is no longer being performed by anyone, that consultation processes were properly followed and/or that they could not reasonably be redeployed to another position. If an employee is able to establish any of those factors, then they may have grounds to make an application for unfair dismissal remedy in the Fair Work Commission.

If you do not consider that your position is genuinely redundant, you are able to challenge the termination of employment by filing an application for unfair dismissal remedy with the Fair Work Commission. However, such application has a strict time limit of 21 days from the day the dismissal took effect.

Peters Bosel Lawyers are able to provide you with timely advice and guidance if you are unsure as to the legitimacy of the termination of employment on the grounds of redundancy, or have other concerns during the course of a restructure of your employer’s business.

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