Redundancy – Ensure Requirements of Genuine Redundancy are Met

We have recently had an increased number of queries in relation to redundancy. Members are reminded that it is important to ensure the requirements of genuine redundancy are met. Where redundancy is not managed appropriately, it may expose employers to an unfair dismissal claim or a general protections claim if the termination is deemed unlawful. If you are considering making certain positions redundant, make sure the redundancy is a genuine one and the consultation requirements under the applicable award or the EBA (if any) are adhered to.  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,
• the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy, and
• it would not have been reasonable in the circumstances to redeploy the affected employee within the company or an associated entity.

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/EBA requires the employer to consult about redundancy. If the employer is required to consult and fails to do so, it may not be a case of genuine redundancy.

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