Employee redundancy checklist

Employee redundancy checklist

Employee redundancy checklist

If you have recently been made redundant and feel you have been unfairly dismissed, please answer the following questions to see if you have a claim.

1. Am I employed under a national system employer? (See Definition (1) in Appendix A)

YES/NO
If no, Fair Work Act unfair dismissal laws do not apply. If yes, continue.

2. Is my annual remuneration more than $129,630 (2013-2014 figure)? (See Definition (2) in Appendix A)

YES/NO
If no, go to Q4. If yes, continue.

3. Does a modern award or enterprise agreement apply to my employment? (See Definition (3) in Appendix A)

YES/NO
If no, FW Act unfair dismissal laws do not apply. If yes, continue.

4. Have I served more than 6 months at the time of the dismissal (or 1 year for a small business (See Definition (4)))?

YES/NO
If no, FW Act unfair dismissal laws do not apply. If yes, continue.

5. Is dismissal on the grounds of genuine redundancy? (Refer to Appendix B)

YES/NO
If no, continue. If yes, FW Act unfair dismissal laws do not apply.

6. Was the termination of employment at the employer’s initiative? (Refer to Appendix B)

YES/NO
If no, FW Act unfair dismissal laws do not apply. If yes, FW Act unfair dismissal laws do apply, refer to Appendix C.

Please refer to Appendix’s A, B, C and D for definitions and explanations.

If you fill out the table as followed and find the unfair law dismissal laws do apply, and you do fall under one of the categories in Appendix C (page 5), please contact our office for further guidance.

Appendix A

Definition (1)

  • A national system employer is:

(a)  A constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)  The Commonwealth, so far as it employs, or usually employs, an individual; or

(c)  A Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)  A person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)  A flight crew officer; or

(ii)  A maritime employee; or

(iii)  A waterside worker; or

(e)  A body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)  A person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

  • Who is not a national system employer?

A State or Territory declaration is required to specify the employer that is not to be a national system employer and a written endorsement by the Minister administering the Fair Work Act must be in force in relation to the employer. Someone who is not a national system employer would have full knowledge of this through writing from the Minister.

(Refer to Section 14 of the Fair Work Act 2009 (Cwt) for further information)

Definition (2)

  • Annual remuneration:

Compensation that one receives in exchange for the work or services performed (salary per year). Annual remuneration is inclusive of any bonuses or extras an employee may receive. This may include items such as superannuation contributions, fees or bonuses, footwear or uniform allowances, motor vehicle and travel allowances, annual leave loading, and/or holiday pay. There are many other various inclusive items. Essentially an employee’s annual remuneration will include any compensation they may receive for a service that the Government will tax. Annual remuneration is not tax inclusive.

Definition (3)

  • Modern award:

Modern awards usually have:

(a) Base pay rates, including piecework rates

(b) Conditions and requirements for different types of employment (eg. full-time, part-time or casual)

(c) Overtime and penalty rates

(d) Allowances (eg. travel allowances)

(e) Leave and leave loading

(f) Hours of work (eg. rosters, making changes to working hours)

(g) Requirements for annual wage or salary arrangements

(h) Superannuation entitlement and conditions

(i) Procedures for consultation, representation and settling disputes

(j) Outworkers

(k) Redundancy conditions.

(Refer to Part 2-3 of the Fair Work Act (2009) for further information)

Definition (4)

  • Small business:

A small business is one that has no more than 20 people employed at one time. This includes a maximum of 15 full-time employees, and any number of part-time or casual employees which make up a total less then 20.

(Refer to Section 23 of the Fair Work Act 2009 (Cwt) for further information)

  • Enterprise agreement:

Enterprise agreements set out the employment conditions between an employee or group of employees and an employer.

(Refer to Section 172 of the Fair Work Act 2009 (Cwt) for further information)

Appendix B

  • Genuine Redundancy:

A ‘genuine redundancy’ is when:

(i) The employee’s job doesn’t need to be done by anyone because of operational changes to the business (eg. downsizing or new machinery), and;

(ii) the employer has met the consultation requirements (found in the relevant modern award, enterprise agreement or other industrial instrument).

(Refer to Section 389 of the Fair Work Act 2009 (Cwt) for further information)

Proof by the employer is required to prove the redundancy valid (written form, not oral)

  • Employer’s initiative:

The employer took the initiative to make your position redundant (i.e. their choice)

  • Constructive dismissal:

Where an employer behaves in a way that amounts to a breach of the contract of employment, so that the employee is entitled to terminate the employment without notice; in this situation, the employee is to be treated as having been dismissed by the employer. (Eg. Leaving an employee to work in intolerable conditions may be constructive dismissal, eventually having to leave the due to a course of conduct by the employer).

Appendix C

  • Make sure the dismissal is lawful

It’s unlawful to end an employee’s employment because of:

(i) Temporary absence from work because of illness or injury

(ii) Union membership (or non-membership) and participation in union activities

(iii) The employee seeking office or acting as a representative of employees

(iv) The employee filing a complaint or participating in legal proceedings against the employer

(v) Absence from work during parental leave

(vi) Reasonable temporary absence from work to participate in a voluntary emergency management activity

(vii) Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(Refer to Page 5/16 of the AIRC Termination of Employment guide (http://www.airc.gov.au/dismissals/dismissalsdocs/te_general.pdf ) for further information)

Appendix D

  • Unfair dismissal definition

An employee’s dismissal from employment is unfair if it is harsh, unjust or unreasonable. For harsh, unjust or unreasonable dismissals, several issues are considered, these include whether:

(i) There was a valid reason related to the person’s capacity or conduct

(ii) They were informed of that reason

(iii) They were given an opportunity to respond

You are dismissed if your employer terminates your employment or you were forced to resign because of conduct engaged in by your employer.

  • Considerations before applying for unfair work dismissal

(i) If you work for a small business with less than 15 employees, you must have worked for 12 months before you can apply for unfair dismissal. If the employer complied with the small business fair dismissal code above then the dismissal is not considered unfair.

(ii) If you work in a business with 15 or more full time employees, you must have worked for the business for at least 6 months to be covered by the unfair dismissal laws. If you earn more than the high income threshold (currently $129,300) and are not covered by a modern award or enterprise agreement, you are not covered by the unfair dismissal laws (refer to Appendix A for definitions).

(iii) When you continue to be employed in a job and the business is sold or transferred to another non associated entity of the old business the new employer may inform you in writing before the new employment starts that a period of service with the old employer would not be recognised as continuous service for the purposes of unfair dismissal

(iv) If you are a casual employee you are not eligible for unfair dismissal unless you were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.

(v) You are not eligible to apply for unfair dismissal if you were employed for a specified time or a specified season or you were on a training arrangement for a specified period of time and the employment terminated at the end of the time agreed.

(vi) If you were demoted but the demotion does not involve a significant reduction in wages or duties and you remain employed by the employer that reduced the duties then you are not eligible to apply for unfair dismissal.

(vii) You are not eligible to apply for unfair dismissal if your dismissal was a case of genuine redundancy. This means the job no longer needed to be performed by anyone because of operational requirements in business and the employer has consulted about the redundancy as required by any enterprise agreement or modern award (refer to Appendix B for genuine redundancy definition).

(ix) It is not a case of genuine redundancy if it was reasonable in all the circumstances for the person to be reorganised with the employer’s enterprise or the enterprise of an associated entity of the employer.

If you believe you can apply for an unfair redundancy, or have any queries regarding your employment matters, please contact our office.

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