Redundancy As A Defence To Unfair Dismissal
As the economy continues in tough times, employers appear to be increasingly confronted With the possibility of Generating employees redundant
. How do you make this happen whilst still protecting yourself from a claim for unfair dismissal? Alternatively, as an employee, what seem to be your rights When talking about being made redundant?
When does Unfair Dismissal arise?
Section 385 of these Fair Work Act 2009 (Qld) ("the Act") delivers 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 company Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy."
Do Employers have a defence against a claim of Unfair Dismissal?
Employers may take a defence to unfair dismissal if a person's dismissal amounts to genuine redundancy. Section 389 of those Act delivers that it will likely be a real 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 at the operational requirements of the employer's enterprise;
(b) the employer has complied along with other any obligation in a modern aware or organization agreement that applied to the employment to consult about the redundancy."
Further, the employer must prove that it was not reasonable at the situations for the person to be redeployed.
What are the consultation obligations?
An employer must comply With the consulting obligations in a relevant Modern Award or organization Agreement. Consultation obligations can include:
notifying the affected employees as well as their representatives (if any) when a definite decision has been made;
discussing the decision With the employees in addition to their representatives (if any) as early as practicable after the decision has been made;
providing all relevant Info (in writing) about the changes to the affected employees (including nature of the changes proposed, expected effects of those changes about the employees, and measures to avert or mitigate the adverse effects); and
giving prompt consideration to matters raised by the employees relating into the change.
Failure to comply With all the consultation obligation may well result in an unfair dismissal as the employer will not take a defence of actual redundancy. The employer will then have to demonstrate that, not withstanding this failure, the dismissal is still "fair".
Is it reasonable for any person to be redeployed?
If redeployment within the employer's business or the organization of an associated entity of these employer is reasonable at the circumstances, the dismissal won't amount to a actual redundancy and also the employer might not have a defence to a claim of unfair dismissal. but if such redeployment just isn't reasonable in all of the circumstances, the employer might rely around the defence of genuine redundancy.
The Full Bench of Fair Work Australia in Ulan Coal Mines Ltd v Honeysett & Others [2010] FWAFB 7578 held that "it is an vital part of these concept of redeployment...that a redundant employee be placed in Yet another job in the employer's company as an alternative to termination of employment".
The Full Bench discovered that the following factors seem to be relevant when taking into consideration whether It's reasonable for a person to be redeployed:
the job need to be suitable (that is, the employee need to have the skills and competence to perform it);
the area of those job in relation in to the employee's residence; and
the remuneration that's offered.
If an employer, after considering all the factors relating to redeployment, decides that it would not be reasonable at the cases for the person to be redeployed, then it might rely around the defence of real redundancy if a claim of unfair dismissal is made against it.
Seek legal advice
If you might be an employer and are contemplating Making a decision to dismiss any of your employees around the basis of redundancy, we recommend which you seek legal advice just before Creating that decision to ensure that you meet all the requirements set out at the Act. We can assist you with other this.
If you have been dismissed around the basis of redundancy and you would like to already know if it might amount to unfair dismissal, early legal advice is crucial as you only have Two weeks in one the date the dismissal takes effect to bring an application for unfair dismissal. We can assistance to you along with other this.
by: Neva Joles
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