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I’ve been made redundant. Can I make an unfair dismissal claim?

The unfair dismissal jurisdiction of the Fair Work Commission specifically excludes “genuine redundancies”.  If your redundancy qualifies as a “genuine redundancy” you will not be entitled to make a claim for unfair dismissal against your employer.

The Fair Work Act 2009 defines a “genuine redundancy” as one in which;

  • the employer no longer requires your job to be performed by anyone because of changes in operational requirements; and
  • the employer has complied with any obligation in an applicable modern award or enterprise agreement to consult about the redundancy; and
  • it would not have been reasonable in all of the circumstances to redeploy you within the employer’s business or any associated business.

The requirement that the employer no longer requires the job to be performed by anyone is a reference to the position which you filled, and not the task/s which you performed in that position. For example, your employer could make your position redundant and divide the tasks that you performed up amongst other existing staff, and the redundancy would still be genuine.  However, if the employer employed someone new to perform the exact same tasks as you were performing – even if they gave the position a different title – this would not generally be a genuine redundancy.

Many modern awards and enterprise agreements include an obligation to consult where major work place change will lead to redundancies.  Such obligations generally require the employer to consult at the earliest possible opportunity once a decision to make a position redundant has been made. There is not usually any obligation to consult before a firm decision has been made.

Finally, redeployment requires that you be transferred to a different job with equivalent pay and benefits.  If your employer offers you the option of applying for a new job within its business, with no guarantee that you will be given the job, this does not constitute redeployment.

The National Employment Standards provide for certain minimum entitlements for permanent staff who are made redundant.  These include a minimum notice period (or payment in lieu of notice) and redundancy/severance pay.   Redundancy pay is subject to special taxation rules, which often result in no, or very little, tax being deducted. For more information on your entitlements, see our blog “I’m being made redundant. What are my entitlements?

If you have been made redundant and are uncertain whether your circumstances fall within the definition of a “genuine redundancy”, or whether you have received your correct entitlements, we strongly recommend you seek advice from a lawyer experienced in Employment Law.

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Get in touch with today's blog writer:
Margaret Kaukas

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Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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