|
Sham Redundancy - Employment Claim Solicitors - Australian Law
Helpline
Redundancy is expressly defined within the Fair Work Act 2009 (FWAct) and occurs “when a position is no longer needed to be filled by anyone,” this could be caused by a shift in technologies; a machine replaces a human, economic and market considerations wherein the product created is no longer needed due to replacement or no longer sells, and bankruptcy or insolvency. In certain situations compensation for a genuine redundancy is payable either through management or the employer or by the Australian Government, when the employer can no longer pay, such as in the case of insolvency.
Sham Redundancy
There are times when an employer believes that it is cheaper to make an employee redundant rather than pay compensation for unfair dismissal which in some cases can involve unlimited damages. An employer may for example wrongfully make a pregnant woman redundant because of his firms anticipated liability to her in the future whereas the position that she occupied continues under a different guise and is subsequently filled by another. If you are made redundant in suspicious circumstances you should take urgent legal advice as you may have a very substantive claim for unfair dismissal.
Genuine Redundancy
A genuine redundancy arises when an employer will no longer require a job done by anyone because of a slowdown in necessary production due to smaller sales that may be triggered by economic or market slowdowns, reorganisation, restructuring, or relocations, which may be due to takeovers or mergers and when appropriate the employer was fully compliant with any Modern Award and Enterprise Agreement that required consultation. When it was possible to relocate an employee, staff member, or executive to a similar position within the organisation, or with associated businesses and the employer made a decision not to move the employee, staff member, or executive into that position or job then it is not genuine redundancy. The FWAct provides examples of genuine redundancy situations, some of which have already been stated above.
Wrongful Dismissal
The alleged redundancy must be quantified as genuine redundancy, when it is not employees, staff members, and executives can claim reinstatement or compensation for an unfair dismissal. A sham redundancy happens when the employer makes a decision that it may be less expensive to terminate the employment by declaring redundancy for a position or positions, instead of paying the damages for unlawful or an unfair dismissal. An application under these circumstances must be made within a 21-day period the Fair Work Commission (FWC).
Amount of Awards
Under the FWAct employees, staff members, and executive can receive redundancy pay that amounts to an equivalent of pay for a 12-week period. Exceptions apply to the qualifications necessary for compensation claims allowed for employees, staff members, and executives that have less than the 12-month requirement of consecutive service in firms or businesses with 15 or less personnel or 6-months in firms with more than 15 employees, not including casual workers or time spent as an actual casual worker. When an employer is insolvent or bankrupt and cannot pay, they must make application to the FWC for relief or a variance of statutory amounts payable. When the employer fails to pay employees, staff, and executives must make an application to the FWC for compensation.
Employment Lawyers
Our employment law specialist solicitors handle redundancy rights that pertain to any employee to protect their rights as outlined in the FWAct. When you require the assistance or advice just complete a contact form, send an email to our offices or utilise the helpline.
Helpline
|
Contact
|