Genuine Redundancy

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:

  1. the employer no longer requires the employee’s job/position to be performed by anyone because of a change in operational requirements of the employer’s enterprise; and
  2. the employer has complied with any obligations to consult about the redundancy.

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:

  1. the employer’s enterprise; or
  2. the enterprise of an associated entity of the employer.

Consultation as to Major Workplace Changes

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:

  1. notify the employees who may be affected by the proposed changes;
  2. provide information to relevant employees about the changes and expected effects (including the potential for redundancy);
  3. discussion between employer and employee as to steps which can be taken to minimise the negative effects of the proposed changes; and
  4. consider employees suggestions about the changes and the impact on their employment.

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.

Redundancy Pay Entitlements

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.

Focused On Results

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 are focused on results. Our solicitors can assist you with all employment law matters. Call today to discuss your needs.

Office Location and Contact Details


Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311