There are often obligations upon employers relating to consultation and consideration of redeployment opportunities prior to making a role redundant, we can ensure that you are afforded procedural fairness throughout the redundancy process.
Maximise your redundancy package
Ensure all employment entitlements are fully paid
As part of a redundancy package, several factors influence your final terms, including outstanding wages, leave entitlements, redundancy and notice payments, all of which need to be accounted for.
Ensure that your redundancy process is fair
A fair and ethical consultative process is imperative to the redundancy process. Redundancy must be demonstrated to be genuine to ensure it is not deemed as unfair dismissal, and it’s vital to seek legal advice if there is any doubt of this factor.
Working with a redundancy lawyer will ensure you have the support needed to identify if the correct processes have been followed under relevant state, territory or Australian employment law.
This will ensure you know if the redundancy process was followed correctly and that any final terms you agree to are in your best interests. If the process hasn’t been adhered to, or you have been unfairly dismissed, a redundancy lawyer can help you take the action needed to address the situation appropriately.
Our team can provide expert legal advice and support that:
Get in touch with our employment law specialists to ensure you have the right support and guidance while navigating a redundancy. We’ll ensure you have the necessary knowledge to arrive at an outcome aligned with your best interests.
Being genuinely made redundant from your employment is different from being unfairly dismissed. It happens when employers no longer need anyone to work in your position and can arise due to a variety of reasons. The word ‘redundant’ means, simply put, no longer needed.
It can be an emotional time and also come as a shock, especially if you have been with an employer for some time. It can be equally stressful for employers and business owners who must let go of employees. At times, an employee may be redeployed. This means that they are moved into another opening within a company. Successful redeployments depend on several factors, including the suitability of the role and the employee feeling comfortable about moving into this position.
Getting expert advice ensures that you understand both the legal obligations of employers and an employee’s legal rights and entitlements. Each situation will be different, and working with an experienced employment lawyer will ensure that all relevant employment law is adhered to.
Sometimes, when an employee is made redundant, it’s not a clear black-and-white scenario and could be viewed as an unfair dismissal. Unfair dismissal claims can occur if an employee is made redundant and the redundancy is not genuine. There are a number of obligations that employers must generally abide by to ensure redundancy is genuine, these include (but are not limited to): that the employer does not require your job to be performed by anyone, and the employer has complied with any obligation to consult, and it was not reasonable to redeploy the employee within the organisation (or an associated organisation).
The law is very clear on the difference, and the Fair Work Act 2009 has clear guidelines to discern unfair dismissal and genuine redundancy, which employment lawyers can assist you in understanding.
Examples of when redundancy may not be deemed genuine include:
If any of these factors have been at play when you were made redundant, it’s essential to seek legal assistance and ensure that relevant workplace legislation and redundancy conditions have been met.
If you have been made redundant and don’t feel it was done genuinely and reasonably, it’s best to engage the services of an employment law firm specialising in redundancy. If you feel it is more likely a case of unfair dismissal, you need to act quickly.
You must apply for unfair dismissal within 21 days of your employment ending due to legal time limits that apply in Australia.
Our team of redundancy lawyers can provide high-quality legal counsel and assist you in addressing any claims or workplace disputes arising from a non-genuine redundancy. In the case of unfair dismissal or discrimination, we can provide strategic advice and pursue employment litigation if required. This will be done per the Fair Work Act and national legislation, which covers most employees facing redundancy in New South Wales. Our team of redundancy lawyers can assist you in exploring several options and provide support if you need to deal with your employer. We can also help you file an unfair dismissal application or negotiate with your employer for a positive outcome.
Redeployment can be a tricky area to navigate during the process of negotiating a redundancy. It isn’t clearly defined under the Fair Work Act (2009), meaning that every matter must be weighed on its merits. It’s essential that the communication process is straightforward and that both employers and employees work together where possible to come up with practical solutions that best suit the circumstances at hand.
As an employee, you can choose to reject a redeployment offer because it is unsuitable. This doesn’t mean that it is not an acceptable redeployment option; it just means that it doesn’t feel right for you. If an opportunity for redeployment is turned down, you can still be eligible for redundancy payments in many cases, as long as you can provide clear reasoning for not accepting an alternative role.
Examples of this might be due to excessive travel required with a new role or if the hours, tasks or pay do not align with your expectations. If an employee has been offered a position deemed suitable and declines the offer, the Fair Work Commission or court may decide that redundancy entitlements are reduced or even voided in some cases. Working with an experienced lawyer is recommended to ensure that any decisions you make are in your best interests and that you can get the best outcome for your individual circumstances.
If you have been made redundant, your entitlements will vary depending on several factors. If your role is nationally legislated, you will generally be entitled to be paid at your base rate for a set period based on the length of your service to an employer.
You will also need to have any accrued and untaken annual leave and possibly long-service leave. Personal and carers’ leave is not paid out.
We would never recommend that a client sign a Deed of Release unless the company making them redundant offers a cash incentive.
Penalty rates, incentives and allowances are not payable if you are made redundant. It’s best to seek specialist redundancy legal advice if you are unsure of your entitlements and if they have been met.
If you are employed on a part-time or full-time basis by a company with more than 15 employees and have been in that role for a period of a year, you are likely eligible for a redundancy payment.
Redundancy payments are a protected employment right defined under the NES (National Employment Standards) and cover most awards in Australia, but not all of them. It’s essential to consider the relevant legislation that applies to your industry and how they apply to any employment law matter that may arise. We can provide practical advice in this area, ensuring you have the facts needed to make an informed decision.
There are quite a few instances when you will not be entitled to any type of redundancy payment as an employee.
This includes when:
Even if you are not entitled to a redundancy payment, an employer must ensure that the redundancy is genuine.
There are instances when casual workers or other workers listed above will be eligible for a redundancy payment, such as when employment agreements specify this.
Redundancy must be done lawfully, and there is a set process that employers need to follow to ensure this happens. If this is not followed, there is a much higher likelihood that employees may take legal action for several reasons.
At all times during the process, an employer should communicate clearly to their employees about what is happening and why it is happening, providing clear and transparent information and a willingness to cooperate.
In most cases, employers are required to consult with an employee who may be facing redundancy. The need for consulting will be defined by the award or enterprise agreement that the employee is covered under.
If you are facing a redundancy or related employment law issue, it’s important to get professional advice before signing anything, to ensure you have the knowledge available to address the matter in your best interests.
Alternatively, if you are an employer undertaking a redundancy process, it is important to obtain legal advice to ensure that the process is properly and fairly undertaken.
If you have been made redundant while on parental or maternity leave, it’s likely a stressful time to receive the news. In Australia, under the Fair Work Act of 2009, it is legal for an employer to do so, but only if it’s been done for genuine reasons, which you can read about in our earlier questions.
Unpaid maternity or parental leave will not count towards your ‘time of service’ to your employer, but it is still considered ‘continuous service’.
If you feel that your employer has discriminated against you or chosen to make you redundant due to becoming pregnant or being on maternity leave, it’s imperative to seek advice from a redundancy lawyer within 21 days of being made redundant.
Being made redundant means that your position is no longer open and that your skills are no longer required.
Being redeployed is when redundancy is possible, but your employer can move you into a different role with the company. This means that your position may no longer exist but that you can move into a different position instead. The role may be similar or entirely different to what you have previously done.
You may need to do some training to do the role confidently or be required to work at a different location or with different hours. These are all factors that an employee and employer should discuss in depth before making any decisions.
You don’t have to take a redeployment offer from an employer. You will generally still be eligible for redundancy payments if you decline, as long as you give a fair reason. If you are unsure where you stand, our team of Sydney-based redundancy and employment lawyers can ensure you have the right advice.
Annual leave does get paid out when you are made redundant, as does long service leave in most cases. They will be made as a lump sum payment and may be taxed as such. Some redundancy payments can be made as tax-free payments or with concessional rates in place.
Annual leave paid as part of a redundancy generally will not attract these tax concessions. It’s best to seek the advice of your payroll or HR team or engage the services of redundancy lawyers to ensure that your payments are correct and being taxed correctly.
Unlike annual leave, sick pay isn’t paid out during a redundancy unless an award or agreement is in place that states otherwise. Sick pay is rarely paid out when an employee leaves a role, and similar goes with redundancy.
If you need to learn more about leave entitlements and redundancy laws in NSW, contact us for professional advice.
Generally, superannuation isn’t paid with a redundancy package. This is because redundancy and termination payments are not considered in the same way that time you have worked is.
You can put your redundancy payment into your superannuation as a non-concessional contribution, but this is something to weigh up with correct financial advice. You may also want to put a hold on personal contributions and check that your insurance levels are still correct for you.
Depending on your age, and circumstances, you may also be able to access some of your superannuation a little earlier than usual after being made redundant. If you need to understand more about redundancy payments and superannuation, our team of workplace lawyers can help.
A Deed of Release is a legal document that an employer may give you to sign during a redundancy. Prior to signing is the best time to negotiate and it is, therefore, essential to obtain legal advice at this stage.
By signing it, you generally agree to the following:
We strongly advise that employers and employees alike seek clear legal advice from employment contract lawyers to ensure you understand your rights before signing anything.
Our team specialises in contracts and redundancy and will ensure that any steps you take are in your best interests.
Specialist employment law firm Stevens & Associates offers a free and confidential initial call with one of our employment law solicitors, which our team will only use to assess if we are a good fit for each other.
A highly-skilled employment law team member will take you through our legal services, taking the time to understand your needs and goals and advise on how best to move forward with your matter.
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Mr Sathananthan (“the Applicant”) claimed he was being constructively dismissed from his employer (“the Respondent”) after being expected to work excessive hours well beyond his contractual terms. As this case will demonstrates, employers ought to
The full bench of the Fair Work Commission (FWC) has upheld a decision that the dismissal of a residential aged-care facility receptionist, Ms Kimber, who refused to receive a flu vaccine, was not harsh, unjust
Periods of casual employment may be more likely to count as service for the purposes of eligibility to bring an unfair dismissal claim following a recent decision by the Fair Work Commission Full Bench (FWCFB).
Talk to our Redundancy Lawyers for expert advice & support.