An employee will not be entitled to bring an unfair dismissal application in the Fair Work Commission where the dismissal is a case of genuine redundancy.
A dismissal on the basis of genuine redundancy will occur when:
Dismissals on the basis of redundancy will not be considered genuine if it was reasonable in all the circumstances to have redeployed the employee within:
All modern awards and registered agreements include the obligation on employers to consult with employees as to major workplace changes which may impact employment.
The consultation process is intended to be an extensive and meaningful process. The employers are obligated to:
If there is evidence to suggest an employer has decided to dismiss an employee based on redundancy before undertaking the consultation process, it may amount to unfair dismissal.
In circumstances where an employee’s position is made redundant, an employer is usually obligated to provide redundancy or ‘severance’ pay. Redundancy pay is made on top of any outstanding wages, annual leave, superannuation contributions or payments in lieu of notice.
Obligations to provide redundancy pay will not generally apply to employers with less than 15 employees or where the employee has provided less than 12 months service before termination.
Redundancy pay is calculated upon the employee’s base rate of pay and length of service. In certain circumstances, employers can apply to the Fair Work Commission for an order to pay a lesser amount of redundancy pay.
Tax can apply differently to termination payments and therefore employers should be careful to seek appropriate accounting or taxation advice where necessary.
It is essential you have experienced solicitors when dealing with employment law related matters. If you have experienced dismissal based on redundancy or are an employer considering making a position redundant, contact our office, the employment law team will make sure your rights are protected.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000