Posts: Redundancy

An employer may apply to the Fair Work Commission to have an employee’s redundancy pay reduced to a specified amount (which may be nil) in circumstances where it has obtained “other acceptable employment” for the employee.

When considering the financial impact of redundancies, employers should be mindful of the operation of s 120 of the Fair Work Act 2009 (Cth), which allows an employer to apply to the Fair Work Commission to reduce the amount of redundancy pay it is obligated to pay redundant employees in certain circumstances.

In times of major organisational change which result in restructure and redundancies, employers may overlook obligations they may have to provide notice and consult with employees under industrial instruments.

An employee’s dismissal will not be a case of genuine redundancy if it would have been reasonable in the circumstances for the employee to be redeployed within the employer’s enterprise or one of its associated entities.

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

As part of any redundancy process requiring a selection of employees, it is critical that employers consider only matters that are objectively related to an employee in their role and not any of the prohibited reasons under the Fair Work Act 2009 (Cth).

In the event that an employee’s position is made redundant, employers have an obligation to consider opportunities for redeployment. Where an employer has secured “other acceptable employment” for an employee, they may be able to apply to the Fair Work Commission to reduce the amount of redundancy pay owed if the employee refuses to accept redeployment.

The entitlement to redundancy pay under the National Employment Standards of the Fair Work Act 2009 (Cth) is one which is intended to minimise the adverse impact of a redundancy on affected employees, such as loss of job security and the potential difficulties associated with obtaining new employment in the open market.

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.

The Queensland Government recently passed legislation amending the Criminal Code Act 1899 (the Code) to criminalise wage theft by employers in Queensland.‍The Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (the Bill) was introduced to the Queensland Parliament in response to a Report released in 2018 by the Queensland Parliamentary Education, Employment and Small Business Committee following an inquiry into wage theft in Queensland. The Report identified critical issues in wage theft as well as deliberate action taken by employers to frustrate employees’ attempts to recover entitlements.

‍NEWS ALERT - Paid Pandemic Leave introduced into Health Sector Awards Over the course of 2020, the Full Bench of the Fair Work Commission (the Full Bench) has heard and determined applications to vary modern awards to deal with the COVID-19 pandemic.

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.

Employee conduct and codes of conduct, employers’ liability and employee out-of-hours conduct, employer in breach of privacy laws, redundancies and suitable alternative employment, workplace bullying and disciplinary action

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness

Workplace investigations and the disciplinary process, labour hire company convicted, review of Miscellaneous Award 2010, recruitment, criminal records and discrimination, sports Law - player suspensions and stand downs

Discussions with employees about restructures and redundancies are difficult and emotions often run high.

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion.

The Fair Work Act 2009 (Cth) (FW Act) provides that a person will not be unfairly dismissed where the person was dismissed as a result of genuine redundancy.

The FW Act provides a minimum entitlement to redundancy pay in situations where an employee’s position is genuinely made redundant.

The FWC has reduced an employee’s entitlement to redundancy pay to nil after an employer successfully argued that it obtained ‘other acceptable employment’ for the employee, which the employee had refused.

As the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly, but what does it mean for the employees engaged to perform work under those contracts?

While it is often an unpleasant process, in some circumstances (depending on the nature of the workforce) employers may choose to call for expressions of interest for voluntary redundancies before moving to compulsory redundancies.

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

When a company is confronted with a downturn in business it can be a very difficult time for both employers and employees. As part of ensuring the financial viability of the business employers are often forced to consider reducing workforce size by way of forced or voluntary redundancies. But, it’s not always the case that an employer needs to resort to redundancies to reduce its wages costs. In a recent decision of the Fair Work Commission, an employer was praised for its efforts to retain staff during a difficult period.

If the Fair Work Commission (FWC) finds that an employee’s employment was terminated on the basis of a genuine redundancy, the employee does not have access to the unfair dismissal jurisdiction. However, if the employee’s position was made redundant and the FWC finds that redundancy was not genuine, the employee will be entitled to access the jurisdiction.

Employers unfamiliar with the unfair dismissal process often overlook an important part of their response to an unfair dismissal application: whether the former employee is even eligible to make a claim!

The Fair Work Act 2009 (Cth) (FW Act) requires Enterprise Agreements to include a consultation clause obliging employers to consult with their employees about “major workplace change” or a change in regular rostering or ordinary hours of work.

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

An inevitable fact of a growing business is that at some point it will undergo an organizational restructure. These will undoubtedly affect employees across all levels of the company. Employers should be ready to appropriately manage and communicate these changes to employees.

HR professionals inhabit a unique environment with a unique set of challenges – they are expected to balance compliance, business interests and employee interests all at once. The most difficult position a HR professional can find themself in is being asked to carry out a business decision by a superior that conflicts with their obligations to ensure compliance with workplace laws, including the protections afforded to employees under the Fair Work Act 2009 (Cth) (FW Act).

As reported this month in HRM Magazine, Futurist Chris Riddell predicts that artificial intelligence will play a key role in business leadership in the next five years. Riddell says, “Artificial Intelligence will start to make decisions and will ‘co-pilot’ the running of business.” But, as the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

The issue of relocating employees from one location to another arises when a business is restructuring, when a site closes down, or when a business decides to move its operations. A recent decision of the Fair Work Commission (FWC) considered the issues of relocation, redundancy and unfair dismissal.

Restructuring and redundancies can be difficult under the best of circumstances. Employers have obligations to their employees during these times and sometimes the fast paced demands of the business are at odds with those obligations. In a recent decision, Williams and Ors v Staples Australia Pty Ltd [2017] FWC 607, the Fair Work Commission (FWC) examined the obligations of a particular employer and found that its hasty implementation of redundancies resulted in four unfair dismissals.