Redundancy becomes an unfair dismissal when there’s no consultation

An employer has a legal obligation to consult with an employee before making their position redundant, and if they fail to do so, the redundancy can be considered an unfair dismissal.

Depending on which award you work under, your employer has certain obligations when making your position redundant, like consulting with you, and discussing the impact any changes are likely to have on you.

The case of the real estate agent 

A real estate agent was recently awarded nearly $15,000 when the Fair Work Commission found that she was not offered a genuine redundancy, but rather it was a sham to sack her.

Sarah Cruise worked as an Assistant Property Manager at Ray White Langwarrin in Victoria since 2015.

In August last year, she was told that her current role was going to be made redundant and was going to be replaced with a permanent position allegedly involving the same duties.

The reason given by the business for the redundancy was to increase “the level of service provided and time dedicated to the property management department.”

But the Commission found that it was not a genuine case of redundancy because the agency:

• failed to consult with Ms Cruise by not to providing her with details about the new role;

• failed to consult with Ms Cruise about her family responsibilities and whether the new job could be amended to accommodate her (for example, could the employer have considered “job sharing”);

• did not send correspondence with adequate details about the consultation process to Ms Cruise (the purpose, outcome, parameters of and timeline for the discussion were not detailed sufficiently); and

• the process was not ‘genuine’ because Ms Cruise was offered a position she would almost certainly turn down given her family responsibilities and the lower rate of pay.

READ MORE:

>>  The full decision of the Fair Work Commission

The case of the medical centre practice manager

Earlier this year, Fair Work Claims negotiated a $12,000 settlement for a medical centre practice manager after she was unfairly dismissed through a non-genuine redundancy.

When the medical centre was sold to new owners, the worker was demoted to a lower paid position of receptionist, and a few months later was told her role was no longer required – even though the medical centre still needed receptionists and a practice manager.

At no time was the worker consulted about the changes, or the impact they would have on her life

Fair Work Claims lodged an unfair dismissal claim in the Fair Work Commission, but before the matter reached a full hearing, the employer agreed to pay the worker $12,000 compensation.

READ MORE HERE:

Employers need to be aware of their obligations

Industrial relations specialist Miles Heffernan from Fair Work Claims warned employers to be aware of their obligations when it comes to genuine redundancy.

“Bosses need to be aware of their consultation obligations, especially small business owners,” he said.

“Consultation is a genuine and important part of the process, and it needs to happen.

“Employers should also make themselves aware of what circumstances make a redundancy genuine – and can include things like the role now being performed by a machine, or if there is a downturn in business, so less people are needed to do the same job.

“If a worker has any doubt around the circumstances of their redundancy, I would recommend they seek urgent legal advice, because you could be entitled to compensation – but keep in mind, you only have 21 days from the date of your dismissal to lodge a claim,” Mr Heffernan said.

RELATED STORY:

If you have been unfairly dismissed, experienced discrimination, or sexual harassment, we can help.

Please call our specialist team at Fair Work Claims today on 

1300 324 748

To connect with us, please follow us on:

Fair Work Claims is a private consultancy and advocacy firm with no affiliation to any government agency, commission or tribunal.