In relying on section 3892 of the fair work act 2009 the act, roy claimed that the employer did not take steps to consider whether it was viable to redeploy the affected employees. Redundancy and redeployment laws fair work legal advice. Hr07 policy descriptor this policy sets out the trusts approach to redeployment and redundancy and reaffirms the trusts commitment to redeploying staff where at all possible. In the recent case of skinner et al v asciano services pty ltd ta pacific national bulk 2017 fwcfb 574 the full bench found that an employer breached its obligation to explore redeployment options under s.
The dismissal must not be genuine as defined by the fair work act. Redundancy and redeployment requirements the australian. Dec 18, 20 redundancies are an unfortunate reality in the present economic climate and legal claims often follow. Section 3892 of the fair work act 2009 cth act states that a redundancy is not genuine if it would have been reasonable in all the circumstances for the person to be redeployed within the employers enterprise or the enterprise of an associated entity of the employer. Such employees are barred from bringing an unfair dismissal claim under the fair work act 2009 in cases of genuine redundancy. Under the fair work act, the amount of redundancy pay may be varied which may be to nil by the fwc where an employer arranges other acceptable employment and the terms and conditions offered with respect to the other employment are deemed to be fair. The fair work act 2009 cth is prescriptive at some level, for example the amount of redundancy pay that is payable to employees. Under the fair work act 2009, a dismissal will not be regarded as relevantly unfair if, inter alia, the dismissal was a case of genuine redundancy sec 385. Section 389 of the fair work act 2009 cth the act requires an employer to offer an employee whose original role has been made redundant. Under the fair work act, it is a complete defence by an employer to an unfair dismissal case that the dismissal was a case of genuine redundancy see sec 389 the effect of which was described as follows in mccarthy v patrick stevedores holdings pty ltd 2016 fwc 2039 delivered 1 april 2016 pe. Do i have to accept a redundancy if the redeployment options. Your employer has to follow a fair redundancy process if youll have worked for them for at least 2 years by the time your job ends. However, the applicability of fwa is not uniform as the fair work australia, formed.
For those employees who have redundancy and redeployment entitlements set out in their contract of employment, enterprise agreement or under legislation, where it differs from this policy the more favourable entitlement but not both will apply. If an employee is dismissed by reason of redundancy, that employee will generally be entitled to redundancy pay in accordance with the national employment standards of the fair work act 2009. The court of appeal decision is likely to impact of redundancy legislation, so vanessa james, partner and head of employment at sa law, takes a closer look. Redeployment can be broadly defined as the transfer of an employee to another job within the same organisation or an associated entity. Under the fair work act, employers have an obligation to redeploy redundant employees if it is reasonable to do so. He also noted the employees submission of redeployment being required to. Career money life offers services to support hr teams. Redundancy and redeployment what are your obligations. For more information, check the application to vary redundancy pay form on the fair work commission website.
Dec 17, 2015 the fair work act 2009 cth is prescriptive at some level, for example the amount of redundancy pay that is payable to employees. Oct 23, 2018 as a matter of best practice, employers in redundancy situations should ensure they have all of the ingredients for a genuine redundancy even though the obligations imposed by the fair work act may only apply to some of their employees. There is a substantial obligation on the employer to place an otherwise redundant employee elsewhere in its organisation, including within associated entities if it wishes to avoid an unfair dismissal claim. The fair work act s3892 contains a provision that an employer cannot rely on the genuine redundancy provisions in order to avoid a claim of unfair dismissal unless it would have been unreasonable in all the circumstances for the employee to be redeployed within the employers enterprise. Redundancy and redeployment guide for australian employers. Redundancy the latest hr news, analysis and guidance. Redundancy and redeployment university of auckland. A guide to redundancy under the fair work act money. The fair work commission has found an employees redundancy was not a ruse. An eligible employee who is successfully redeployed within an organisation is not entitled to. Do i have to accept a redundancy if the redeployment.
Redeployment refers to the transferring of an employee from one job to a broadly comparable job to ensure continuity of employment. Redeployment enables the organisation to retain skills and to create a flexible workforce. A persons dismissal will not be a case of genuine redundancy if it would have been reasonable. This redeployment obligation is important for employers in order to avoid a redundancy being found to be an unfair dismissal. Unless covered by an industry specific redundancy scheme, or greater entitlements in an award, contract or agreement, redundancy pay is covered by the national employment standards nes s119 122 fair work act cth. It is not a genuine redundancy situation, if it is reasonable for an employee to be redeployed within the. The way redundancy payments are calculated is based on what is outlined in the fair work act 2009. Redundancy and an employers redeployment obligations. However, employers must still be able to justify such a. Redundancy and redeployment procedure academic staff. A redundancy occurs when an employer no longer requires a job to be performed by an employee. If the employer is not meeting their duties on redeployment, you may have been unfairly dismissed.
Employers restructure their business for a variety of reasons and this sometimes means that they need to make employees redundant. Genuine redundancy and redeployment job swapping reasonable. Redeployment unfair dismissals benchbook fair work commission. Redundancy and redeployment more info call 7779 page 4 of 12 rights and responsibilities as with most employment matters there are rights and responsibilities. Refer to cch books latest fair work act and employment titles for more. We work with our clients to manage the sensitivities of the situation and work in partnership to support both the organisation and the individuals. Our termination of employment letter redundancy template docx 48. Redundancies genuine and inevitable despite casual offer. Ncg pays an individual redundancy payment on the termination of employment due to redundancy.
Recent developments in redundancy redeployment lexology. For those companies looking to further reduce their workforce, the redeployment requirement will have a major effect. Redeployment and redundancy public sector commission. Workforce performance division 08 6552 8600 statement of intent this commissioners instruction ci sets out further requirements of a procedural nature to support the operation of part 6 of the public sector management act 1994 psma and the. If the eat upholds the decision of the eat, the court of appeal will inevitably make it a real challenge for employers to restructure their businesses, meaning that opportunities for. Imagine a situation where an employee loves working for their. The amount of redundancy pay will depend on the employees length of continuous service with your organisation. Gordon williams explores how consultation and redeployment can play an important role in mitigating the risks, both in unfair dismissal claims and also in relation to redundancy and parental leave employees who would otherwise be. One of the more difficult pitfalls to contend with is the redeployment requirement under the act.
An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy. Meeting your obligations in relation to redundancy aca. This often occurs with the introduction of new technology into a workplace, business operations slowing down due to lower sales, business closing down, or workplace relocation interstate or overseas or if there has been a restructure or reorganisation because a merger or takeover happens. The fair work commission has confirmed that an employers obligation to offer redeployment opportunities to employees does not necessarily extend to similar roles performed for the business by contractors. An employer must actively attempt to redeploy an employee in an associated entity before the redundancy is considered genuine under the fair work act 2009 cth but what exactly does this entail. The essential ingredients for a genuine redundancy are. The implementation of redundancies can be a complex process and it is. These guidelines should be read in conjunction with the councils policy and procedure, for redundancy and redeployment. Redeployment offer on lower pay was reasonable, dismissal claim fails.
If the employer is not meeting their duties on redeployment, you may. When considering dismissing an employee for redundancy, great care must be taken to ensure compliance with the fair work act 2009 the act in order to avoid potential exposure to any unfair dismissal claim. A guide to redundancy under the fair work act money management. Redeployment within the school a in line with the statutory position and case law an employee on maternity or adoption leave or. What hr needs to know about redeployment during redundancies. Nov 26, 2010 a new provision introduced by the fair work act 2009 is that an employer cannot rely on the genuine redundancy provisions in order to avoid a claim of unfair dismissal, unless it would have been unreasonable in all the circumstances for the employee to be redeployed either elsewhere in the employers business or in an associated business entity. Parts of the new fair work act came into effect on july 1, 2009, with the redundancy provisions coming into effect from january 1, 2010 in line with the nes. If a dismissal is not considered genuine an employee may.
Further, if an employer imposes a redundancy on an employee where appropriate redeployment options exist due to a prohibited reason such as the exercise of a workplace right, family responsibilities or race, this may also give rise to a successful general protections claims with the fair work commission. Any legitimate redundancy must comply with the genuine redundancy terms under section 389 of the fair work act 2009. Redundancy pay redundancy pay is conditional upon ncgs ability to pay the statutory minimum. Redundancy of executive employees owen hodge lawyers. More on genuine redundancy under the fair work act. Oct 09, 20 in relying on section 3892 of the fair work act 2009 the act, roy claimed that the employer did not take steps to consider whether it was viable to redeploy the affected employees. Jul 30, 2016 section 3892 of the fair work act 2009 cth act states that a redundancy is not genuine if it would have been reasonable in all the circumstances for the person to be redeployed within the employers enterprise or the enterprise of an associated entity of the employer. This article discusses what redeployment is and what you and your employer should be doing during the redeployment period. On that basis, roy argued that there had been no genuine redundancy for the purpose of the act and his dismissal should be regarded as unfair.
Public sector executive mayjune 12 in the marchapril edition of pse, we covered the cipds report into trust at public and private sector organisations, and the high praise it gave to the way sunderland city council has handled budget cuts without resorting to redundancies. If the redundancy is not genuine, then you may have a case for unfair dismissal. This is likely to occur as a result of redundancy, but that is not always the case. Casual employees, fixed term employees and contractors are not entitled to redundancy payments unless. Under subsec 389 2 a persons dismissal is not capable of being a case of genuine redundancy if it would have been reasonable in all th. A recent case offers some guidance howarth v ulan coal mines limited 2010 fwa 4817. Entitlement to redundancy pay 1 an employee is entitled to be paid redundancy pay by the employer if the employees employment is terminated. Under the fair work act an employer can seek a determination by the fair work commission to reduce the amount of redundancy pay that would otherwise be payable, if they have obtained other acceptable employment for the employee.
You should be invited to at least 1 individual meeting with your employer to discuss redundancy. The concept of acceptable employment may also be considered in relation to redundancy pay. Guidelines redundancy and redeployment for academic. Under the fair work act, it is a complete defence by an employer to an unfair dismissal case that the dismissal was a case of genuine redundancy see sec 389 the effect of which was described as follows in mccarthy v patrick stevedores holdings pty ltd 2016 fwc 2039 delivered 1. Redundancy, restructure and redeployment nb lawyers. A new provision introduced by the fair work act 2009 is that an employer cannot rely on the genuine redundancy provisions in order to avoid a claim of unfair dismissal, unless it would have been unreasonable in all the circumstances for the employee to be redeployed either elsewhere in the employers business or in an associated business entity. The requirements for a genuine redundancy section 389 of the fair work act 2009 cth the act requires an employer to offer an employee whose original role has been made redundant reasonable redeployment opportunities within the employers enterprise or the enterprise of an associated entity.
Redeploymentandor the redundancy process, including consultation and provision of information to employees, mustbe undertaken in accordance with section k of the enterprise agreement. Aug 05, 2014 the fair work commission has confirmed that an employers obligation to offer redeployment opportunities to employees does not necessarily extend to similar roles performed for the business by contractors. In such case, the executive will have a common law claim against the. Newsletters videos e books featured articles seminars. Apart from your individual meeting there isnt a set process. It is worked out that given a certain number of years, or year, that an employee has been working, they will be entitled to a certain number of weeks pay. The fair work commission has found that four workers were made. Redundancy pay and entitlements fair work ombudsman. Act 2010 code of practice, employment statutory code of practice. This booklet is intended to act as guidance for managers and personnel staff. For those employees who have redundancy and redeployment entitlements set out in their contract of. While the university has the right to move staff from one position to another whether within the area or to another area of the university for fair and reasonable operational.
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