The worker sought three other redeployment options as part of the relevant redundancy selection process. This redeployment obligation exists for all redundancies, regardless of whether a redundancy is due to advances in systems and technology or. Be aware through that depending on your length of service and your companys redundancy pay policy you may not be entitled to received an redundancy pay. The retail workers union is taking woolworths to the fair work commission over the shopping giants recent announcement of a companywide restructure. Fair work australia clarifies position opportunity to apply. Mar 20, 2017 in the recent case of skinner et al v asciano services pty ltd ta pacific national bulk 2017 fwcfb 574 the full bench found that an employer breached its obligation to explore redeployment options under s. Am i entitled to redundancy pay if my employer provides me.
The nes apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract. Redundancy pay and entitlements fair work ombudsman. In addition as the working hours have changed and you would be unable to get to work on time i think you have a good case to request that you are made redundant instead. Marama offers to let phil not work during the last two weeks of his redundancy notice period. The amount of redundancy pay the employee gets is based on their continuous service with their employer. An unfair dismissal application cannot be made if the dismissal was a case of genuine redundancy. School employees guidance booklet for supporting the redeployment and redundancy process for schools corporate employees redundancy. However, employers must still be able to justify such a. Fair entitlements guarantee is a commonwealth scheme that helps employees when a business becomes insolvent and cannot pay workers their redundancy. But what happens while the employee is on parental leave. Under section 389 of the fair work act 2009 cth a redundancy is not a. However, all employees whose employment is ending due to redundancy must be given notice in terms of the employment agreement. This booklet is intended to act as guidance for managers and personnel staff. To find out when redundancy doesnt need to be paid, go to who doesnt get redundancy pay.
What are the redeployment obligations of employers. In a very interesting decision, a senior member of the fair work commission has concluded that an employer, which had read more redeployment and. Generally, employers must not terminate an employees employment unless the employer has given the employee written notice of the day of the termination of the employment which cannot. A redundancy will not be genuine if it would have been reasonable.
You should be invited to at least 1 individual meeting with your employer to discuss redundancy. Mar 08, 2011 the second was a joint appeal by the four applicants that were unsuccessful at first instance, against the finding that the dismissal of each of them was a case of genuine redundancy. If your employer makes you a reasonable offer of alternative work, and you. Im an employee looking for notice or redundancy entitlements. There is no general obligation on an employer to implement or facilitate a swap arrangement between an employee whose position is redundant and an employee who wishes to volunteer for redundancy. Redeployment refers to the transferring of an employee from one job to a broadly comparable job to ensure continuity of employment. For the purposes of section 389 2 of the act, the commission must consider whether there was a job or a position or other work within the employers enterprise or that of an associated entity to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. During a redundancy process, redeployment and obtaining acceptable alternative employment are separate but interrelated concepts. This argument will be substantiated by surveying the attitudes towards redeployment in the 1984 termination change and redundancy case tcr case, the 2004 redundancy. The fair work commission commission has dealt with this issue in a number of cases since late 2014 and in. The nes establish the minimum entitlement to the notice period, or payment in lieu of notice. Redundancy and redeployment university of auckland. Generally, employers must not terminate an employees employment unless the. Such employees are barred from bringing an unfair dismissal claim under the fair work act 2009 in cases of genuine redundancy.
Redundancy and redeployment requirements the australian. From individual redundancies to large scale restructures, redundancy continues to be a dominant theme in 2015. If you have been made redundant at work, and that redundancy is not genuine, resolution123 can assist you in making a claim for unfair dismissal. Redundancy and other matters government of victoria. The information contained on this website is general in nature. One of the recurring issues is whether an employer is exempt from the obligation to pay redundancy pay because it has obtained other acceptable employment for the worker. A persons dismissal will not be a case of genuine redundancy if it would have been reasonable. Redundancy and redeployment fair work legal advice. Redundancy and redeployment guide for australian employers. Redeployment is significant for the purposes of the genuine redundancy definition and unfair dismissal, whereas whether an employer obtains acceptable alternative employment for the employee is a factor that may result in a reduction in an employers. There is a substantial obligation on the employer to place an otherwise redundant employee elsewhere in its organisation, including within associated entities if it wishes to avoid an unfair dismissal claim. While the meaning of the term redeployment is not defined in the fair work act, what is considered a reasonable offer depends on the specific circumstances that exist at the time of the redundancy. Redundancy and reasonable redeployment options fair work.
It should be noted some modern awards provide for redundancy pay where an employer employs fewer than 15 employees. When an employees dismissal is a genuine redundancy the employee isnt able to make an unfair dismissal claim. Workforce performance division 08 6552 8600 statement of intent this commissioners instruction ci sets out further requirements of a procedural nature to support the operation of part 6 of the public sector management act 1994 psma and the. If you are unsure about whether your employer has satisfied their obligations in redeploying you, please book a time to speak with us here. If an employer can satisfy the fair work commission that a dismissal has resulted from a genuine redundancy, the employer will have a complete jurisdictional defence to an unfair dismissal claim. Redeployment unfair dismissals benchbook fair work commission. The commission determined that consideration of whether a redeployment role is suitable must be balanced, not overly stringent, and that the. A full bench of fair work australia fwa has recently provided guidance on an employers obligations under section 389 of the fair work act 2009 fw act. Redeployment enables the organisation to retain skills and to create a flexible workforce. The redeployment obligation requires an employer to actually transfer the employee rather than simply assist the employee to find an alternative position. Further, if an employer imposes a redundancy on an employee where appropriate redeployment options exist due to a prohibited reason such as the exercise of a workplace right, family responsibilities or race, this may also give rise to a successful general protections claims with the fair work commission. As a matter of best practice, employers in redundancy situations should ensure they have all of the ingredients for a genuine redundancy even though the obligations imposed by the fair work act may only apply to some of their employees. An employee returning from parental leave is entitled to return immediately before commencing parental leave. This redeployment obligation is important for employers in order to avoid a redundancy being found to be an unfair dismissal.
How much redundancy pay and notice an employee should get, consultation, checking your redundancy is fair and when to appeal. The redundancy calculation tables can be found on the intranet, under the hr direct document store in the following documents. The fair work commission has accepted the argument that an administrative officer was not entitled to redundancy on the grounds that she had refused two alternative positions as redeployment options. Aug 05, 2014 the fair work commission has confirmed that an employers obligation to offer redeployment opportunities to employees does not necessarily extend to similar roles performed for the business by contractors. Do i have to accept a redundancy if the redeployment options. It is worked out that given a certain number of years, or year, that an employee has been working, they will be entitled to a certain number of weeks pay. The redeployment obligation in s 3892 of the fair work act 2009 cth applies if it is reasonable in all the circumstances.
The end of the line genuine redundancy and redeployment. This is likely to occur as a result of redundancy, but that is not always the case. Redundancy and an employers redeployment obligations. Looking at the future surplus of human resources the organisations have to prepare action plan for redeployment, redundancy and retrenchment. May 21, 2012 in addition as the working hours have changed and you would be unable to get to work on time i think you have a good case to request that you are made redundant instead. The act provides that an employer can make an application to the fair work commission fwc for an order that they are not required to pay redundancy pay, or for a reduction in the amount of redundancy payable if they obtain other acceptable employment for the employee. Under the fair work act 2009 cth, a person who has been unfairly dismissed has rights and remedies because of the dismissal. There matters were recently examined by the fair work commission in the matter of sharp. Phil is grateful because he gets the satisfaction of completing critical tasks before those last two weeks and he has time to get his cv ready and start. Dec 18, 20 under s84 of the fair work act, an employee on parental leave has a right to return to their original position or, if it no longer exists, to an available position for which the employee is qualified and suited nearest in status and pay to their original position the return to work guarantee. Redundancies are an unfortunate reality in the present economic climate and legal claims often follow.
Planning for redeployment, redundancy and retrenchment. Apr 09, 2018 it should be noted some modern awards provide for redundancy pay where an employer employs fewer than 15 employees. For those employees who have redundancy and redeployment entitlements set out in their contract of employment, enterprise agreement or under legislation, where it differs from this policy the more favourable entitlement but not both will apply. Whether employees receive redundancy payments is dependent on the applicable employment agreements and is a matter for negotiation between the parties. Possible remedies to an unfair dismissal include monetary compensation and reinstatement. Under subsec 389 2 a persons dismissal is not capable of being a case of genuine redundancy if it would have been reasonable in all th. The government understands that in some instances departments and agencies will be required to restructure workplaces, introduce new technology or change existing work practices and that these changes could affect employees, potentially resulting in. You do this by completing form rp6 pdf and giving it to your employer. The fair work ombudsman is committed to providing advice that you can rely on. Do i have to accept a redundancy if the redeployment. Genuine redundancy and redeployment job swapping reasonable. So, before i found out i was pregnant, i had been offered a redeployment option, which wasnt the best, and because of a few in the grand scheme of things, insignificant factors it wouldnt have been reasonable, so i was leaning towards redundancy. To help you find the information you need, wed like to know if you are an employee or an employer.
Jul 30, 2016 in fact, having a good understanding of what redundancy is and your obligations is important for every employer that has employees or is planning to hire in the future. If you are unsure about how it applies to your situation you can call our infoline on 94 or speak with a union, industry association or workplace relations professional. Redeployment becomes an important consideration where the employee being made redundant has access to the unfair dismissal jurisdiction. This will help tailor the tool to use language relevant to you. For those employees who have redundancy and redeployment entitlements set out in their contract of. The way redundancy payments are calculated is based on what is outlined in the fair work act 2009. Both appeals were made pursuant to s604 of the fair work act 2009 the fair work act. This redeployment obligation exists for all redundancies, regardless of whether a redundancy is due to advances in systems and technology or another reason such as due to a restructure. Of particular relevance to local government in victoria is the relationship between the redeployment requirements of this provision, and the appointment on. The ulan mine is approximately 50 kilometres north of mudgee. Letter of termination of employment redundancy template.
Woolies last week announced it would be shuffling staff members around to make way for a new operating model. Redeployment and redundancy public sector commission. Workforce planning is essential for avoiding the situation of redundancy where the position of employment of an employee is or will become surplus to the requirements of the business of employer davey, fearon and mclaughlin 20. The fair work commission must find, on the balance of probabilities, that there was a job or a position or other work within the employers enterprise or that of an associated entity to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. It is important to plan for redundancy in order to maintain an. The implementation of redundancies can be a complex process and it is. Find out what happens when employment ends because of a genuine redundancy what does it mean, how much is paid and what are the consultation and. There needed to be a real consideration of options for redeployment. The fair work commission has confirmed that an employers obligation to offer redeployment opportunities to employees does not necessarily extend to similar roles performed for the business by contractors.
More on genuine redundancy under the fair work act. A guide to redundancy the following steps have been adapted from the fair work ombudsman and business victoria web sites web addresses provided on pages 12 and of this module and serve as an initial guide to making a redundancy. Im an employer or business looking for notice or redundancy entitlements. On that basis, roy argued that there had been no genuine redundancy for the purpose of the act and his dismissal should be regarded as unfair. As an alternative to redundancy an employee may be redeployed. How to make a redundancy plan, consult your employees, select employees fairly and what notice and pay you must give. Tell us where to send your free fair work ombudsman brochure. If he will still have enough work for full time go into a period of redundancy consultation. If the employee is unable for some reason to continue in the redeployed post, one further redeployment option will be considered.
Redundancy and redeployment laws fair work legal advice. Understanding how to conduct a redundancy properly, fairly and in compliance with the fair work act, will help avoid a sensitive situation becoming a painful problem further down the track. Career money life offers services to support hr teams. There are a number of elements which must be satisfied by the employer if it is to satisfy the commi. Section 389 of the fair work act 2009 cth the act requires an employer to offer an employee whose original role has been made redundant reasonable redeployment opportunities within the employers enterprise or the enterprise of an associated entity.
This trial period will be extended on a shortterm basis by mutual agreement if deemed necessary up to a maximum of 3 months. Redeployment and consultation concepts and redundancy. Recent developments in redundancy redeployment lexology. In lw v easy payroll perth pty ltd 2017 fwc 2469, ms w was a part time payroll officer based in perth. While the university has the right to move staff from one position to another whether within the area or to another area of the university for fair and reasonable operational.
Notice of termination and redundancy pay forms part of the national employment standards nes. Sep 04, 2017 while the meaning of the term redeployment is not defined in the fair work act, it is not sufficient for an employer to find another job within the organisation to avoid the payment of redundancy pay, unless the employee accepts the new terms of employment. Employee denied entitlements after refusing redeployment. Letter of termination of employment redundancy template you can use this letter to provide an employee with written notice of termination due to redundancy. Now with the pregnancy though, i have no idea what to do. A new provision introduced by the fair work act 2009 is that an employer cannot rely on the genuine redundancy provisions in order to avoid a claim of unfair dismissal, unless it would have been unreasonable in all the circumstances for the employee to be redeployed either elsewhere in the employers business or in an associated business entity. Find out what your rights are if youre being made redundant. Retail union takes woolworths to fair work commission over. These guidelines should be read in conjunction with the councils policy and procedure, for redundancy and redeployment. The redeployment policy and the associated procedure are not contractual and may be amended by the school from time to time. Apart from your individual meeting there isnt a set process. Redundancy and redeployment procedure academic staff. If an employee, whose position is being made redundant, can in fact be redeployed to another position within the business, there may be an obligation on the employer to make arrangements for redeployment.
If at any time you need more information or assistance, call the fair work. Redundancy and redeployment national broadband network. However, a dismissal will not fall into the definition of an unfair dismissal if it was a case of a genuine redundancy. School employees guidance booklet for supporting the redeployment and redundancy process for schools corporate employees redundancy policy appendix b payment restrictions. Nov 24, 2015 recent developments in redundancy redeployment. Return to work guarantee, redundancy and redeployment. Oct 09, 20 in relying on section 3892 of the fair work act 2009 the act, roy claimed that the employer did not take steps to consider whether it was viable to redeploy the affected employees.
In the recent case of skinner et al v asciano services pty ltd ta pacific national bulk 2017 fwcfb 574 the full bench found that an employer breached its obligation to explore redeployment options under s. Your employer has to follow a fair redundancy process if youll have worked for them for at least 2 years by the time your job ends. Please note that this information is a guide only and is current at the time of writing this document. Under the fair work act, the amount of redundancy pay may be varied which may be to nil by the fwc where an employer arranges other acceptable employment and the terms and conditions offered with respect to the other employment are deemed to be fair. In relying on section 3892 of the fair work act 2009 the act, roy claimed that the employer did not take steps to consider whether it was viable to redeploy the affected employees. Gordon williams explores how consultation and redeployment can play an important role in mitigating the risks, both in unfair dismissal claims and also in relation to redundancy and parental leave employees who would otherwise be. Redundancy pay doesnt need to be paid in some circumstances eg.
A recent decision of the fair work commission fwc considered the issues of relocation, redundancy and unfair dismissal. Casual employees, fixed term employees and contractors are not entitled to redundancy payments unless. The requirements for a genuine redundancy section 389 of the fair work act 2009 cth the act requires an employer to offer an employee whose original role has been made redundant reasonable redeployment opportunities within the employers enterprise or the enterprise of an associated entity. Redundancy occurs where you lose your job due to circumstances such as. We revisit below what is a genuine redundancy as well as explain what an employers redeployment obligations are. Ncg aims to ensure that there will be a fair and systematic approach to the management of redundancy. If you believe that the termination of your employment was not as a result of genuine redundancy, there may be rights and remedies available to you under the fair work act 2009 cth. Read this article to learn about measures and plan in planning for redeployment, redundancy and retrenchment. Under the fair work act 2009, a dismissal will not be regarded as relevantly unfair if, inter alia, the dismissal was a case of genuine redundancy sec 385. Ncg aims to ensure that there will be a fair and systematic approach to the management of redundancy situations in the workplace.
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