Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about your rights when it comes to redundancy.
I was recently headhunted for a job and got wooed into taking it after they offered an attractive six-figure package plus a bonus.
I hadn’t been looking for a job and had been happy with the same company for over a decade, but the offer was too hard to resist.
However, after I’d handed in my notice and just days before I was due to start, my new company made my role redundant.
My old company had found my replacement so I was stuck with no job! If this company knew they were in trouble then why did they pursue me so aggressively?
Is there anything I can do as I’m out of pocket and out of work! – Shanna, Victoria
Shanna, this news would have come as a big shock and now left you in a very stressful situation.
It is important that you understand your rights when it comes to redundancy to know how best to navigate the situation.
If the redundancy is not genuine, or legal, then it can likely be challenged as unfair dismissal under the Fair Work Act.
These laws apply whether or not you actually commenced in the role, as long as you had a signed contract or an agreement to commence with the employer.
Certain criteria need to be met for it to be a genuine redundancy which include the following:
1. The job you were hired to do now doesn’t need to be done by anyone. This could be for a variety of reasons including an operational change about how the work is performed, a decrease in work coming in, or even the company going into insolvency.
2. Further, the employer needs to have consulted you as required under the award, enterprise agreement or other registered agreement you were employed under.
With respect to the consultation process, most agreements require a process to be followed which can include giving you information about the proposed changes, considering your views including alternative proposals you put forward (reduced hours or job sharing).
Your employer should have also clearly explained the reason why your job no longer needs to be done.
In some situations, like this, there may be opportunities for the affected employee to be redeployed within the organisation, taking into account their experience, skills and qualifications and the requirements of the alternate role.
From your question it is unclear if any of this consultation took place.
Given you hadn’t started with the company, if they didn’t adequately consult with you, it will be really tricky to know where you stand. You should therefore ensure you reach out to them and ask them these questions.
If the above criteria were not met you could potentially challenge it through the Fair Work Commission (FWC).
If the reasons given for your redundancy appear to be discriminatory – such as age or gender – that is unlawful under the Fair Work Act general protections.
Just 21 days to lodge application
To challenge the redundancy, you can seek legal advice or contact the FWC immediately as you only have 21 days from the date of dismissal to lodge an unfair dismissal application disputing it.
You should also check the payout details your employer has provided you as there are many occasions where the employer has not paid the employee their full redundancy entitlements.
The National Employment Standards set out minimum redundancy entitlements but some employees have an entitlement over and above that in a modern award, enterprise agreement or their contract of employment. Also check if your former employer has a redundancy policy.
Redundancy payments are based on continuous years of service, so unfortunately due to the short period of your employment it is unlikely you will be entitled to any additional payment on top of your payment for notice of termination period and outstanding annual or long service leave entitlements.
Think about what sort of outcome you want from the FWC as there may be opportunities to resolve the matter without going to a hearing; for example, do you want another position with the company, an apology, a written reference, support to find other employment; bearing in mind the cap on compensation is the lesser of 26 weeks’ pay or $74,350.
To enforce your legal rights and not let your employer get away with this conduct seek legal advice or contact Fair Work.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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