How does an employment lawyer handle a redundancy dispute?

Redundancies are never easy. When processed lawfully with procedural fairness, they’re tough. When processed incorrectly, unfairly or unlawfully, they’re downright rotten. If you’re faced with a redundancy, remember it’s the job that’s no longer needed, not the person. Despite this, you might find yourself wondering why you’ve been let go.

Redundancies can sometimes be used as a convenient way to ‘exit’ vulnerable workers, that is, those with illnesses, injuries, disabilities or family responsibilities. If you’re concerned that you may be a candidate for redundancy, get early legal advice to understand your rights and make sure you’re treated fairly and lawfully.

Rights and responsibilities

Most workplace policies and enterprise agreements include redundancy processes that outline the rights and responsibilities of both employees and employers. It’s important to access these at the time of the redundancy announcement. You should act quickly to learn your rights because time limits can apply to unfair dismissal claims.

Reasons for dispute

There are two main reasons why people seek legal advice about redundancies:

  1. They believe that their redundancy isn’t genuine, and that they’ve been selected for reasons other than what their employer is claiming.
  2. They accept that their redundancy is genuine, but they wish to negotiate their payout and exit.

Assessment

When assessing a client’s circumstances, an employment lawyer has three main considerations:

  1. What reason has the employer given for their selection?

Here we consider the selection criteria for redundancies, for example, an employer might say it’s based on workplace performance and skills mix. But if, for example, the employee in question is on parental leave, their performance and skills may not have been properly assessed.

The employer may have failed to ensure that the redundancy process is in accordance with their policies or the law.

  1. Does the employee have a vulnerability that could potentially make them a target?

This may include illness, injury, disability or family responsibilities. A vulnerable employee may be someone who requires workplace adjustments or someone who’s made a workers compensation claim. It may be someone who is currently on, has just returned from or is about to take parental leave.

We also consider which other employees have been made redundant. This helps to determine if there’s a link between vulnerability and redundancy.

  1. Did the employer consider possible deployment opportunities?

The employer needs to comply with their relevant awards and enterprise agreements. These may contain provisions for an employee to be moved to another position within the workplace, where appropriate, when their old position is made redundant.

Determination

Once these assessments have been made, an employment lawyer will form a view as to whether the redundancy is genuine or unfair/unlawful.

Genuine redundancy

If we consider it genuine — neither unfair nor unlawful in accordance with the Fair Work Act’s definition — we can assist our client in negotiating a favourable redundancy package. Our goal is to resolve things directly with the employer with as little conflict as possible. If this can’t be achieved, we’ll explore litigation options. These usually involve mediation or conciliation.

Real motivation

If our view is that the redundancy is not genuine, the next step is to determine the real motivation. This may fall into one of two categories:

  1. Unfair: If it’s considered unfair or there’s been no proper process, we’ll look to rights under the employee’s contract and/or the unfair dismissal regime in the Fair Work Act.
  2. Unlawful: If it’s considered unlawful (e.g. discrimination based on gender or disability), we’ll look to discrimination law and general protections under the Fair Work Act.

Unfair dismissal

To access an unfair dismissal application you need to satisfy these requirements:

  1. The minimum employment period

You must have been employed for at least six months for workplaces with more than 15 employees or 12 months for workplaces with fewer.

  1. The income threshold

You must earn less than the high-income threshold or be covered by an award or enterprise agreement.

  1. The dismissal must not be a genuineredundancy, asdefined by the Fair Work Act.

Once your eligibility has been determined, we need to demonstrate that one of these applies:

  •  there was no valid reason for dismissal
  •  the process lacked procedural fairness
  •  the dismissal was disproportionately harsh given the circumstances.

The next step is to file an unfair dismissal claim at the Fair Work Commission. Once filed, the employer will respond. Fortunately most matters are resolved through conciliation.

Discrimination and general protections

If you’ve been made redundant for reasons protected by anti-discrimination law, one option is to file a complaint at the Australian Human Rights Commission (AHRC), or the relevant state body.

The AHRC will undertake a preliminary investigation. It will then conduct mediation between the employee and employer. If the matter can’t be resolved, the employee can refer it to a trial; however, most discrimination complaints are resolved through conciliation before they reach court.

Resolution

The desired outcome can be either reinstatement or compensation, depending on the employee’s priorities. Sometimes people won’t seek reinstatement because their relationship with the employer has deteriorated. Other times they want their job back.

Redundancies are never easy, but professional advice can help make the process fair and get you the outcome you deserve.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Alana Heffernan

Maurice Blackburn Sydney
Alana Heffernan is a Senior Associate in Maurice Blackburn's employment department in Sydney. She is listed by the prestigious Doyles Guide as a member of one of the top law firms for employee & trade union representation in NSW in 2017. Alana provides tailored advice and assistance in relation to a broad range of industrial and employment issues including dismissals, discrimination, disputes, issues related to professional registration, adverse action complaints, workplace investigations, disciplinary proceedings and contract issues. She has a comprehensive understanding of the employment and discrimination legal frameworks, and is experienced in appearing before the relevant courts and tribunals, as well as negotiating out-of-court settlements. “There is an inherent imbalance of power in the employment relationship and I enjoy assisting employees to access their rights, entitlements and fairness. I am able to provide creative solutions for issues faced by senior managers and executive clients, including with respect to statutory and common law rights. I have significant experience advocating for my clients, both directly with employers and their lawyers, as well as at relevant tribunals and courts,” says Alana. “I am creative and leave no stone unturned when it comes to finding practical solutions for my clients. From the outset, I work with my clients to develop a strategy for resolution and achieving the best outcome. “I am driven by helping clients achieve fair outcomes that protect their financial and reputational interests. I have worked across many industries and have a deep understanding of the tactics employers use against employees. These tactics vary greatly across industries and employers and I ensure my approach is tailored to the circumstances. I work hard to ensure my clients are in the best position possible to continue in their career, either with their current employer or with a future employer.” Alana has a particular interest in anti-discrimination law and has actively advocated for amendments to anti-discrimination law to include protections for victims of domestic violence. These proposed amendments have been supported and advocated for by various community and legal peak bodies, as well as the Australian Council of Human Rights Agencies. Some of Alana’s other significant achievements include: obtaining court orders preventing an employer from altering her client’s working conditions negotiating agreements that include reinstatement stopping employers from engaging in unlawful discrimination against clients negotiating settlements for clients that not only provide significant compensation, but also protect their professional reputation representing clients in a Royal Commission, and successfully appealing a decision of the Fair Work Commission in relation to allegations of unlawful industrial action. Alana regularly advocates for the rights and entitlements of the LGBTIQ community, and her diverse employment relations experience benefits from having worked for community organisations, unions and the (then) Department of Employment and Industrial Relations.  Memberships & accreditations Law Society of NSW member Industrial Relations Society of NSW member Awards Employment & Workplace Health Safety, Doyle's Guide 2016 Women's Law Association of Queensland Emergent Lawyer of the Year Finalist, 2015 Lawyers Weekly 30 Under 30 Workplace Relations, Employment & Safety winner, 2015  ...

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