Due to the unprecedented disruption caused by COVID-19, many employees’ positions have been made redundant throughout Australia. However, employers should note that if the redundancy is not “genuine”, the employer can be liable for unfair dismissal of employees.

According to section 389 of the Fair Work Act 2009 (the “Act”), to be a genuine redundancy all of the following requirements must be satisfied:

a. The employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

The employer must consider whether the job is no longer required and will not be performed by anyone else. If an employee’s job still exists after his/her dismissal and the job is performed by another employee, it would not be viewed as a genuine redundancy.

The Act does not define the term “operational requirements”. But some common examples include business downturn, business closure, restructure and introduction of new technology.

b. The employer has complied with the obligations under the applicable modern award or enterprise agreement.

For example, it will not be a case of genuine redundancy if an employer does not comply with consultation obligations under industrial instruments. Typically, this requires employers to notify the employees of major workplace change including its effect and engage in meaningful consultations about the change.

c. A redundancy will not be genuine if it would have been reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

The employer should consider all available positions to see if there is any suitable position for the employee. In determining whether redeployment is reasonable a number of factors may be relevant, such as the nature of any available position, the qualifications required to perform the job and the employee’s skills and experience.

Where an employee has made an application for an unfair dismissal remedy, the employer must prove that the requirements of section 389 have been met; otherwise, the Fair Work Commission may determine that the dismissal was unfair.

Everingham Solomons have experienced Solicitors who can provide redundancy advice, or any other advice on employment law you may require, because Helping You is Our Business.

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