It is not uncommon for businesses and organisations to restructure or reorganise their staffing. What does this mean for you?
If you are a working carer and this happens to you, you could lose your job. What does this mean for you? Can you claim unfair dismissal?
The Fair Work Act (FWAct) recognises that an employee has not been unfairly dismissed if the reason for the dismissal was because of circumstances that amount to a ‘genuine redundancy.’
In the case of genuine redundancy, the employee would at least be entitled to a redundancy payout.
The FWAct states a person’s dismissal is a case of genuine redundancy if:
- the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise
- the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment, to consult about the redundancy.
Meaning of ‘job’
In tribunals and industrial courts, the term ‘job’ has generally been defined as ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee.’
What is critical in identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to perform.
If there is no longer any function or duty to be performed by that person, his or her position becomes redundant. This does not mean that if any aspect of the employee’s duties are still being performed by somebody, he or she cannot be redundant.
According to the Explanatory Memorandum to the Fair Work Bill 2008, a ‘genuine redundancy’ can still exist where the duties of a previous job persist, but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.
If, however, an employee claims unfair dismissal, the Fair Work Commission (FWC) will consider, among other relevant factors, whether the job being performed at the time of the dismissal continues to exist after the employee’s dismissal.
Also, a person's dismissal will not be considered a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer's enterprise; or
(b) the enterprise of an associated entity of the employer.
What is unfair dismissal?
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Read Section 389 of the Fair Work Act on genuine redundancies here: