Redundancy Lawyers, Brisbane
A genuine redundancy is a complete answer to an unfair dismissal claim. A redundancy that is not genuine is simply a dismissal with a better name.
Under the Fair Work Act a dismissal is a genuine redundancy only if the employer no longer requires the job to be performed by anyone because of operational change, the employer complied with any consultation obligation in the applicable award or enterprise agreement, and it would not have been reasonable to redeploy the person within the employer’s enterprise or an associated entity. If any element is missing, the redundancy defence fails and an unfair dismissal claim can proceed.
The three elements, and why employers fail on the second
The Fair Work Act sets out what a genuine redundancy is, and it has three parts. The job must no longer be required to be performed by anyone because of changes in the employer’s operational requirements. The employer must have complied with any obligation to consult about the change contained in an applicable modern award or enterprise agreement. And it must not have been reasonable in all the circumstances to redeploy the person within the employer’s enterprise or the enterprise of an associated entity.
The first element is rarely the problem. Businesses genuinely restructure, and the Commission does not second-guess a commercial decision to reorganise. The second element is where employers most frequently come unstuck, because consultation is treated as a box to tick after the decision rather than a process to conduct before it.
Consultation obligations in most modern awards require the employer to notify affected employees, provide relevant information about the change, discuss its likely effects and measures to avoid or mitigate adverse effects, and genuinely consider matters raised. Informing someone their position is redundant is not consultation about whether it should be. If the award applied and that process did not happen, the redundancy is not genuine within the meaning of the Act — regardless of how real the business reason was.
Redeployment is assessed across the whole group
The redeployment question is not limited to the employing entity. It extends to associated entities, which in a group structure can mean a genuine obligation to consider vacancies in related companies. An employer that made no enquiry beyond the immediate business unit has usually not satisfied this element.
Redeployment does not have to be to an identical role at identical pay. The question is whether it would have been reasonable in all the circumstances, taking account of the person’s skills, the availability of positions, and whether reasonable retraining would have made a role viable. An employee who would have accepted a lower-paid position they were never offered has a real argument.
What you are entitled to be paid
Redundancy pay under the National Employment Standards is calculated by reference to continuous service, and notice of termination is a separate entitlement paid in addition to it. Small business employers, as the Fair Work Act defines them, are generally not required to pay redundancy pay at all, though notice still applies. An applicable award or enterprise agreement may provide more than the statutory minimum, and often does.
Accrued annual leave must be paid out. Long service leave in Queensland is a separate state entitlement with its own qualifying period and is dealt with under Queensland legislation rather than the Fair Work Act.
Redundancy pay scales, notice periods and the small business employee threshold are set by the Fair Work Act and are subject to change. They are not reproduced here — check the current figures with the Fair Work Ombudsman, and check your award or agreement, which may provide more. See sources 2 and 3.