There is a misconception that if your employment is made redundant, that you have no entitlement to start an unfair dismissal claim. That’s not true.
If your employment has ended, you only have 21 days from the date that the dismissal is effective to commence an unfair dismissal claim or a general protections claim in the Fair Work Commission. Exceptions can be granted, but it is rare.
The stress, humiliation and overwhelm that you feel when you are dismissed is not considered exceptional circumstances. Unfortunately, COVID is not considered exceptional circumstances. If you lose your job you’ve got only 21 days to take action.
What is a Genuine Redundancy?
If you have been made redundant, it doesn’t mean you can’t sue for unfair dismissal. It needs to be a genuine redundancy. This is a three-part test.
A genuine redundancy is where the job you are doing is no longer required to be performed by anyone. Your job is a combination of duties. It is okay for your employer to reduce the headcount and redistribute your duties across a broader number of employees. If that happens then the first part of the test is satisfied.
What if you have reservations that your job is still required? If you know you have been replaced or that they were advertising for the position, that’s good evidence that the first part of the test is not made out.
The second part of the test is important especially if you want to retain your job in the COVID-19 crisis. If you are covered by an award or an agreement and there is a duty to consult with you about a redundancy under that modern award or enterprise agreement, then your employer must have complied with that requirement. It means you should be given notice in writing that your position is likely to be affected by your employer, the reasons why your position is likely to be affected and efforts that have been taken to try to mitigate the risk of you losing your job.
You are entitled to that information in writing. You are entitled to meet with your employer including with a representative or a support person to discuss why your position has been made redundant and how that might be avoided. Anything that you can put on the table that might result in your job being kept on is important. Consider all alternatives to redundancy including reducing your hours/ days of work temporarily/permanently, taking your accrued leave, taking a pay cut temporarily/permanently.The employer has to hear you out. They have to genuinely consider what you put to them.
Just because you raise concerns as to why your employment should be continued doesn’t mean that your employer has to continue your position, they can still make you redundant.
The most important thing is that you’re given the information about why your position is affected. You are given the opportunity to persuade your employer to make a different decision.
It is important in this current environment that you actively participate in that process.
- Did you get all of the information necessary?
- Did you get an opportunity to persuade the decision-maker to go a different way?
- Did they consider your information before making you redundant?
Your employer has that obligation, so try to persuade them to keep your job. It can make a difference. If your employer does not consult with you properly, you may be eligible to commence an unfair dismissal claim.
The third part of the test is that your employer must try to redeploy you into any available position. That includes positions that you might otherwise consider to be more junior or beneath you. They’re required to put all of the options to you. A requirement to participate in the competitive recruitment process will not satisfy this obligation.
For example, if all they say is that there are available positions and you can apply for them, go through to an interview and join in with external candidates – this is not satisfying the duty to redeploy you.
There is an expectation that you might need reasonable training or support to transition into a redeployed role. It’s not enough for your employer to say here’s some available positions but you are not suitable for any of them.
They really need to inquire into your suitability for the role. It’s useful for you to get a CV ready to speak about why you’re suitable for it. Why do you have the skills and experience to perform the role? It’s important to do this, especially if you’ve got a new manager or you’re working with someone that doesn’t really know you that well and doesn’t necessarily know the skills and experience that you have.
FactCheck: Salaried Employees Can Be Covered by an Award
Big employers such as Deloitte are making people redundant en masse and not engaging en masse. In a lot of professional service firms like Deloitte, EY, PwC. They are covered by the Banking, Finance and Insurance Award.
Just because you are a salaried employee does not mean that you are not covered by an award. If you are award covered, there is a duty to consult. Here’s our article about whether you are award-covered and how to work it out. The Fair Work Ombudsman has the pay and conditions tool that helps you identify whether or not you’re covered by a modern award or you can engage us to work it out. The majority of Australian workers are covered by a modern award including engineers, scientists, managers, banking, finance, insurance advisors, as long as you’re not in the executive.
To summarise, a genuine redundancy is when:
- The job is no longer required to be performed;
- The employer fulfils their duty to consult with you (if under award or agreement); and
- The employer has considered options to redeploy you.
Watch out for Employers Not Paying Redundancies
Employers are doing everything they can to avoid paying redundancies at the moment. Some are implementing performance improvement plans to force your resignation or terminate your employment without redundancy. Some are asking the Fair Work Commission to have the requirement to pay redundancy waived on the basis of financial hardship. Or they are claiming that they have obtained acceptable alternative employment but you rejected it.
If your employment is at risk of redundancy, it’s important to open up those lines of communication. Understand if it can be avoided and what are your entitlements. Don’t assume you will be paid redundancy where you’re offered another role and you reject it, you’re not necessarily going to be entitled to it. Understand where your employer is at, anticipate them putting on an application to vary that requirement to pay you redundancy.
Check your super and make sure your employer is still paying it. It’s the first thing that employers stop paying when they have cashflow problems. They do that because many employees are not aware of whether their contributions are being made to their super fund. If there’s an issue with super, then something is going on with cashflow, so resolve it quickly.
At Resolution123, we can help you by figuring out if you are eligible and your prospects of success. You can use our eligibility questionnaire on our website, which will take you through a list of questions without you having to speak to a lawyer. You can book an express consult with us.
You can use our DIY unfair dismissal if you want to make the claim yourself but need a helping hand. Our DIY tools automate completion of the form, along with a tutorial from Carly Stebbing about what you need to include in the form to make sure you put your best foot forward in relation to your dismissal.
Finally, if you would like to engage us to run the matter for you, get in touch with us by calling 1800 737 123.