If you lose your job because you are made redundant, be sure that you check out all your entitlements.

Fair Work Australia

The Concise Oxford dictionary defines redundant (of a worker) as:  liable to dismissal as being no longer needed for any available job.

That’s also a pretty close approximation of what it means from a legal point of view too, as the following legal definition articulates.

A job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him or her, but because the employer no longer wishes the job the employee has been doing to be done by anyone. (Bray CJ.)

To be genuinely redundant the termination has to be because:

  • the person’s job will no longer be required to be performed by anyone;
  • because of changes in the operational requirements of the employer’s enterprise;
  • and the employer has complied with any obligation to consult about the redundancy;
  • and it was not reasonable to redeploy the person elsewhere within the business or an associated entity.

This doesn’t mean that the tasks of the job are no longer done at all, but rather that the tasks are no longer done by the one person.  Distributing an employee’s tasks to others to reduce staff numbers is a redundancy.

Redundancy entitlements in most awards or enterprise agreements usually contain a common exception that a displaced worker is not entitled to a payment if their employer is able to find them suitable alternative employment.

What is suitable alternative employment?

If your government employer finds you work outside of the organisation (say with a private business) this may not be considered suitable alternative employment.

The NSW Industrial Commission has found in a previous case that employment with a privately owned company in a competitive industry is far less secure than employment with a government department, even if the rates of pay and other conditions are the same.

Also, if you are offered a job within the same organisation that does not suit your knowledge and skills, then that might not be accepted as suitable alternative employment either, even if the pay and conditions are the same.

If there is a transfer of employment to another organisation that agrees to recognise past years of service and accumulated entitlements, then no redundancy payment will be offered to the employee.

Can an employee who has been made redundant bring an unfair dismissal claim?

Yes, they can, but not if the dismissal was a ‘genuine redundancy’ and there was adequate consultation and a genuine effort to find alternative employment.

Commissioner Cambridge of Fair Work Australia (Whiteside v G. James Glass [2012] FWA 3580) made it clear that even if a position was redundant it was still necessary to satisfy any obligation in an award to consult and also to consider redeployment.

Redundancy is a complex matter and you may benefit from getting advice from your union representative or getting expert advice from a lawyer with extensive experience in workplace relations law.