Genuine Redundancy and the need for consultation

Workforce Guardian has been busy this month representing three of our clients in unfair dismissal proceedings in the Fair Work Commission. All arose from redundancies which occurred during Covid-19.

What we have learnt from this is that many employers (large and small), still don't realise that they need to consult with an employee in accordance with a modern award or enterprise agreement, before making a role redundant.

Consultation must include:

  • notifying the affected employees in writing of any proposed changes AND
  • the expected effects those changes will have on an employee (eg the likelihood of redundancy)
  • discussing steps taken to avoid and minimise the expected changes (including offering employees any existing roles which may be available after the restructure)
  • discussing the selection process for redundancy
  • considering any ideas or suggestions put forward by employees before making any role redundant

Ideally, we recommend advising employees that the Company has made a definite decision to implement major workplace changes which may affect the employee's ongoing employment. As a result, a meeting has been convened to discuss these changes including any redundancies and what roles might be available after the restructure.

Only after the consultation process has occurred, can the employer then genuinely make any roles redundant.

Small Business Fair Dismissal Code

Small Businesses with fewer than 15 employees (including long-term casuals), should also fill out the Small Business Code checklist before making any role redundant. This will ensure that you have followed all relevant procedures.

Of course, this will not stop an employee bringing an unfair dismissal claim, but it will definitely reduce their likelihood of success.

If in doubt, contact Workforce Guardian before making any definite decision to make a role redundant and we can talk you through the process.