Redundancy and unfair dismissal

There has been a dramatic rise in workplace redundancies in recent times, thanks in large part to the uncertainty caused by the COVID-19 pandemic. A redundancy that is not genuine however, may result in a number of potential actions by an employee, including for unfair dismissal.

For a redundancy to be genuine there are important processes that must be followed. Both employees and employers should keep these in mind when navigating the difficult path of redundancy.

What is a genuine redundancy?

A redundancy is considered genuine if the employer no longer needs the person’s job to be performed by anyone and where the employer has met the obligations to consult imposed by the relevant award or enterprise agreement.

An employer may no longer need the job to be performed by anyone because of changes to business requirements such as:

• a decrease in staffing numbers due to a downturn in business
• new technologies that make the position obsolete
• a restructure of the business.

What is not a genuine redundancy?

There will not be a genuine redundancy in cases where:

1. The employer still requires the person’s job to be performed by someone. This does not mean however, that the duties can’t be absorbed by another staff member or the Director of the business.
2. The employee could have been redeployed within the organisation and was not offered the opportunity.
3. The employer fails to follow the obligations set out in the relevant enterprise agreement or award, such as the obligation to consult with the employee.

If the redundancy is not genuine, the employee may have a claim for unfair dismissal.

What is the obligation to consult?

The obligation to consult is usually set out in the relevant enterprise agreement or award and means just that – the employer must consult with an employee before a redundancy. Usually a consultation includes:

• more than one meeting between the employer and employee
• an opportunity for the employee to make suggestions
• time for the employer to properly consider the suggestions before reaching a decision, and
• written notice of the decision.

Our Employment Law team can offer advice in you are considering a redundancy or if you have been made redundant and are not sure if it is genuine. Please contact us to speak with a member of our team.

*The legal information in this article is of a general nature and not intended to be legal advice to rely upon.