Redundancy – A Reminder to Members of Your Consultation Obligations

Members are reminded to follow their consultation obligations when dealing with redundancy. Where redundancy is not managed appropriately, it may expose employers to an unfair dismissal claim by the employees. If you are considering making certain positions redundant, make sure the redundancy is a genuine one and follow the consultation requirements under the applicable award or the EBA (if any).  Members are reminded that it is the employer’s responsibility to prove that the dismissal was a genuine redundancy. Therefore, it is important to keep evidence of meetings and emails exchanged regarding redundancy.

What is genuine redundancy?

A genuine redundancy is where:

• the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, and
• the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy.

It is not a genuine redundancy if the employer:

• still needs the employee’s job to be done by someone (for example, hires someone else to do the job),
• has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement, or
• could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

If you are considering making certain positions redundant, make sure the redundancy is a genuine one and follow the consultation requirements under the applicable award or the EBA (if any).  Members are reminded that it is the employer’s responsibility to prove that the dismissal was a genuine redundancy. Therefore, it is important to keep evidence of meetings and emails exchanged regarding redundancy.

When do I owe consultation obligation to my employees who may be affected by the redundancy?

An employer has the obligation to consult about redundancy if the affected employee is covered by a modern award or enterprise bargaining agreement (EBA) and the award and EBA requires the employer to consult about redundancy. If the employer is required to consult and fails to do so, then it may not be a case of genuine redundancy.

If there is no award or EBA that covers the employee, then the employer is not obliged to consult about the redundancy before a decision is made to make the employee redundant.

For further information about redundancy, click here.

If you have any questions or need assistance in relation to redundancy, please contact our Workplace Relations and Legal Team on 02 6175 5900.