The law is in place to ensure that employee redundancy is about the job and not the person. If a redundancy is imminent, or you’ve been made redundant from your role, it’s important to understand your rights. Losing your job can be a confusing and emotional time, so having the correct information can help you to navigate the situation.
Redundancy may be necessary when a position is no longer required to be performed by anyone. This can happen for a number of reasons, which may include:
The most important thing to know is that a genuine redundancy is about the job, not about the person: it is defined by a position or duties no longer being required. A redundancy is not a solution to a performance issue or about a desire to terminate a particular person’s employment.
If you are a permanent employee and you are being made redundant, you will be entitled to notice. This is either in accordance with:
You may also be entitled to a severance payment under the Fair Work Act, sometimes referred to as redundancy pay. For this, you must meet particular criteria, such as being with your employer for more than 12 months, the employer having more than 15 employees, and other criteria, in order to qualify for this entitlement of up to 16 weeks’ pay. Again, there may be higher provisions within an award, enterprise agreement, employment contract or employer’s policy that you are covered under.
If you are a contractor, your rights are governed by the contractual agreements you have made with an organisation. In this case, you are not an employee and so there is no redundancy — instead, it is the end of a contract and the use of your services. There may be a contractual payment at the end of a contract.
If you an employee on a fixed-term contract, your right to redundancy pay and notice is more complex. If your contract is for a maximum term with a clause allowing the parties to terminate earlier, your contract can only be terminated early in accordance with that clause. In effect, this means that you will only be entitled to notice and/or redundancy pay if the clause provides for it. However, if your employment is terminated early and it is not done in accordance with that clause, then you may be entitled to relief for breach of contract.
Alternatively, if your contract is for a fixed term or until the completion of a specified task without a clause allowing for early termination and it is terminated early, then you may be entitled to redundancy pay or notice and/or relief for unfair dismissal depending on the circumstances.
If you are a casual employee, you are not entitled to a redundancy payment. Any notice is subject to the industrial agreement or contract that your employment is covered by.
A redundancy can be a major life event and can have a significant impact on you, your family and your career. The best-case scenario is that your employer will be mindful of the effect that a redundancy will have on their employees, and consider it a last resort. In many cases, an employer will undertake the following measures to help employees whose roles are being made redundant:
Of course, not every redundancy situation meets these ideals. There are often disagreements, which could include:
If you suspect that your redundancy is not genuine or that you are not being paid what you are entitled to, you should first speak with your employer or human resources representative. At a minimum, this may help you to understand the industrial processes that apply to your situation, and to check your redundancy rights.
If you still feel you are not being given the right answers, it’s time to contact the Fair Work Ombudsman or seek legal advice. It is best to take these steps while you are still employed, as this often helps to resolve an issue without resorting to litigation. Be aware that time limits may apply to claims, so consider your options as soon as possible.
Being made redundant can be distressing, but understanding your rights and the responsibilities of your employer can help ease the situation.
We have lawyers who specialise in a range of legal claims who travel to Australian Capital Territory. If you need a lawyer in Canberra or elsewhere in Australian Capital Territory, please call us on 1800 675 346.
We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.