Redundancy as a Defence to Unfair Dismissal

As the economy continues in difficult times, employers appear to be increasingly confronted With the possibility of Creating employees redundant. How do you make this happen whilst still protecting yourself from a claim for unfair dismissal? Alternatively, as an employee, what are your rights When refer to being made redundant?

When does Unfair Dismissal arise?

Section 385 of the Fair Work Act 2009 (Qld) ("the Act") offers that unfair dismissal arises when:

"(a) a person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent Using the little enterprise Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

Do Employers require a defence against a claim of Unfair Dismissal?

Employers may well require a defence to unfair dismissal if a person's dismissal amounts to actual redundancy. Section 389 of those Act gives that it will likely be a actual redundancy if the employer can prove that:

"(a) the person's employer no longer required the person's job to be performed by anyone simply because of changes in the operational requirements of those employer's enterprise;

(b) the employer has complied with other any obligation in a modern aware or organization agreement that applied to the employment to consult about the redundancy."

Further, the employer need to prove that it was not reasonable in the cases towards the person to be redeployed.

What are the consultation obligations?

An employer must comply Using the consulting obligations in a relevant Modern Award or enterprise Agreement. Consultation obligations can include:

notifying the affected employees and their representatives (if any) when a definite decision has been made;

discussing the decision With the employees and their representatives (if any) as early as practicable after the decision has been made;

providing all relevant Information (in writing) about the changes in to the affected employees (including nature of those changes proposed, expected effects of those changes on the employees, and measures to avert or mitigate the adverse effects); and

giving prompt consideration to matters raised by the employees relating in to the change.

Failure to comply With the consultation obligation may result in an unfair dismissal as the employer is not going to require a defence of real redundancy. The employer will then have to demonstrate that, not withstanding this failure, the dismissal is nonetheless "fair".

Is it reasonable to get a person to be redeployed?

If redeployment within the employer's company or the organization of an associated entity of the employer is reasonable at the circumstances, the dismissal will not amount to a actual redundancy along along with other the employer may possibly not require a defence to a claim of unfair dismissal. but when such redeployment is not reasonable in all of the circumstances, the employer may possibly rely around the defence of real redundancy.

The Full Bench of Fair Work Australia in Ulan Coal Mines Ltd v Honeysett & Others [2010] FWAFB 7578 held that "it is an crucial part of these concept of redeployment...that a redundant employee be placed in An additional job at the employer's organization as an alternative to termination of employment".

The Full Bench located that the following factors are relevant when considering whether It's reasonable for any person to be redeployed:

the job have to be suitable (that is, the employee need to feel the skills and competence to accomplish it);

the area of those job in relation to the employee's residence; and

the remuneration that's offered.

If an employer, after thinking about all of the factors relating to redeployment, decides that it would not be reasonable at the circumstances towards the person to be redeployed, then it might rely about the defence of actual redundancy if a claim of unfair dismissal is made against it.

Seek legal advice

If you will be an employer and are taking into consideration Creating a decision to dismiss any of your employees about the basis of redundancy, we recommend that you seek legal advice just before Producing that decision to make certain that you meet all of the requirements set out at the Act. We can assistance to you along with other this.

If you have been dismissed about the basis of redundancy and you need to know already if it may possibly amount to unfair dismissal, early legal advice is essential because you only have Two weeks from one the date the dismissal takes effect to bring an application for unfair dismissal. We can assist you with this.

For more information regarding unfair dismissal in reference to redundancy please visit Unfair Dismissal Experts