{"id":26288,"date":"2022-04-01T23:10:34","date_gmt":"2022-04-01T23:10:34","guid":{"rendered":"https:\/\/rmolaw.com.au\/unfair-dismissal-vs-redundancy\/"},"modified":"2025-02-24T05:13:33","modified_gmt":"2025-02-24T05:13:33","slug":"unfair-dismissal-vs-redundancy","status":"publish","type":"post","link":"https:\/\/rmolaw.com.au\/zh\/unfair-dismissal-vs-redundancy\/","title":{"rendered":"Unfair Dismissal vs Redundancy"},"content":{"rendered":"<p><span data-preserver-spaces=\"true\">This article covers:<\/span><\/p>\n<ul>\n<li><span data-preserver-spaces=\"true\">Unfair dismissal.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">What types of employees are protected from unfair dismissal.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">How it relates to the Fair Work Act and Fair Work Commission.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The obligation on an employer in relation to redundancy.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">A case summary that articulates the difference between unfair dismissal vs redundancy.<\/span><\/li>\n<\/ul>\n<h3><span data-preserver-spaces=\"true\">Have you been dismissed from your Queensland job? If you were made redundant, was the redundancy genuine?<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">The recent economic downturn has had a significant effect on workforce. We have all seen images of people lined up at Centrelink offices to register for an unemployment benefit. Although many have lost their jobs due to businesses (or entire industries) failing, a good majority of the workforce remains employed. Some sectors are even thriving.<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">For those who have become unemployed, it is vital to understand principles of employment law regarding the termination of employment. This article will look at two key aspects of ceasing employment \u2013 unfair dismissal and genuine redundancies \u2013 and their inter-relationship under the Fair Work Act (\u201c<\/span><strong><span data-preserver-spaces=\"true\">the Act<\/span><\/strong><span data-preserver-spaces=\"true\">\u201d).<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">Unfair Dismissal<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">The Fair Work Commission (\u201c<\/span><strong><span data-preserver-spaces=\"true\">FWC<\/span><\/strong><span data-preserver-spaces=\"true\">\u201d) manages applications for unfair dismissal. Most employees are protected from unfair dismissal where:<\/span><\/p>\n<ul>\n<li><span data-preserver-spaces=\"true\">The person has completed the minimum period of employment (six months, or one year if the employer is a \u201csmall business\u201d); and<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The person earns less than the high-income threshold (currently $153,600).<\/span><\/li>\n<\/ul>\n<h3><span data-preserver-spaces=\"true\">Criteria Of Protection<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">The minimum period of employment (6 months) will be extended if the employer is a \u201csmall business.\u201d Under the Small Business Fair Dismissal Code (\u201c<\/span><strong><span data-preserver-spaces=\"true\">the Code<\/span><\/strong><span data-preserver-spaces=\"true\">\u201d), a small business is defined as a business that employs 15 employees or less (including all full-time and part-time employees).<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">The high-income threshold is adjusted annually on 1 July. This is not exclusive to wages and may include non-monetary benefits or amounts directed to a third party by the employee.<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">Most employees are covered by an enterprise agreement or \u201cmodern award\u201d under the Act. Modern awards provide minimum standards for employment, which include leave entitlements, breaks, and pay rates. Modern awards apply even if there is no employment contract between the employee and the employer.<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">Unfair Dismissal<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">Once an application for unfair dismissal has been filed, the FWC will determine whether the dismissal was harsh, unjust or unreasonable. Only one of these elements needs to be proven to find that the dismissal was unfair.<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">There are a variety of issues that the FWC will consider when deciding whether the termination was unfair. These include:<\/span><\/p>\n<ul>\n<li><span data-preserver-spaces=\"true\">The reason for the dismissal.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The alleged misconduct by the employee.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">A failure to provide an opportunity to respond to allegations of misconduct.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The steps taken by the employer leading to termination (e.g., holding meetings with the employee and involving a support person).<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The size of the employer business.<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">Whether the employer has a dedicated human resource manager.<\/span><\/li>\n<\/ul>\n<p><span data-preserver-spaces=\"true\">Each of the above issues (plus any other relevant issues) will need to be considered on the facts of each case.<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">Redundancy<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">A person will not have protection against unfair dismissal where the employment has been terminated as a result of a genuine redundancy. A genuine redundancy occurs when:<\/span><\/p>\n<ol>\n<li><span data-preserver-spaces=\"true\">The employer no longer requires the person\u2019s job to be performed by anyone because of changes in the operational requirements of the employer\u2019s enterprise; and<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">The employer has complied with any obligations imposed by an applicable modern award or enterprise agreement to consult about the redundancy.<\/span><\/li>\n<\/ol>\n<p><span data-preserver-spaces=\"true\">By contrast, a person\u2019s dismissal will not be a genuine redundancy \u201cif it would have been reasonable in the circumstances for the person to be redeployed within:<\/span><\/p>\n<ul>\n<li><span data-preserver-spaces=\"true\">the employer\u2019s enterprise, or<\/span><\/li>\n<li><span data-preserver-spaces=\"true\">the enterprise of an associated entity of the employer.\u201d<\/span><\/li>\n<\/ul>\n<p><span data-preserver-spaces=\"true\">So the key indicia of a genuine redundancy are a discontinuance of the person\u2019s job, compliance with obligations under the enterprise agreement or modern award, and the inability to have the employee redeployed to another position. Modern awards and enterprise agreements include clauses requiring consultation with employees regarding changes that will significantly affect their employment. This would obviously include being made redundant.<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">Dismissal vs Redundancy<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">If the above requirements of a genuine redundancy are met, then the FWC will not have jurisdiction to hear a claim of unfair dismissal. Alternatively, if an employer has not met the requirements of a genuine redundancy, then the termination of employment may be treated as an unfair dismissal and the FWC will consider the factors listed in section 387 of the Act.<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">The Bourdon Case<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">In the case of\u00a0<\/span><em><span data-preserver-spaces=\"true\">Bourdon v AR-Rahmann Investments Pty Ltd T\/A The Cheesecake Shop<\/span><\/em><span data-preserver-spaces=\"true\">\u00a0(\u201c<\/span><strong><span data-preserver-spaces=\"true\">Bourdon<\/span><\/strong><span data-preserver-spaces=\"true\">\u201d) the FWC needed to determine if a genuine redundancy had occurred or if the employee was unfairly dismissed. In reaching his decision in Bourdon, Commissioner Wilson applied the usual test for a genuine redundancy. The issue that required greater consideration was whether the employer had complied with the obligation to consult with the employee before implementing the redundancy. On the facts in Bourdon, it was found that the employer had not adequately consulted with the employee. In fact, the employer had already made up their mind to make the employee redundant, and informed the employee of that fact, during the alleged consultation. Commissioner Wilson found that the termination of employment was not a genuine redundancy.<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">Commissioner Wilson then considered whether the termination of employment was an unfair dismissal. Commissioner Wilson referred to sections 387(c) and 396 of the Act when reaching his decision, noting that the employee was not provided with an opportunity to respond to the reasons for termination of their employment. Consequently, it was decided that the dismissal of the employee was unjust and unreasonable.<\/span><\/p>\n<h3><span data-preserver-spaces=\"true\">\u8054\u7cfb\u6211\u4eec<\/span><\/h3>\n<p><span data-preserver-spaces=\"true\">We are available to meet with you at any of our local offices <a href=\"https:\/\/rmolaw.com.au\/zh\/contact-us\/\">(<\/a><\/span><span data-preserver-spaces=\"true\">\u5e03\u91cc\u65af\u73ed<\/span><span data-preserver-spaces=\"true\">,\u00a0<\/span><span data-preserver-spaces=\"true\">\u9ec4\u91d1\u6d77\u5cb8<\/span><span data-preserver-spaces=\"true\">,\u00a0<\/span><span data-preserver-spaces=\"true\">\u6bd4\u6069\u5229<\/span><span data-preserver-spaces=\"true\">,\u00a0<\/span><span data-preserver-spaces=\"true\">\u514b\u5229\u592b\u5170<\/span><span data-preserver-spaces=\"true\">\u00a0and\u00a0<\/span><span data-preserver-spaces=\"true\">\u91d1\u90a6\u5df4<\/span><span data-preserver-spaces=\"true\">) or by telephone or video-conference.<\/span><\/p>\n<p><em><span data-preserver-spaces=\"true\">This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.<\/span><\/em><\/p>\n<p><span data-preserver-spaces=\"true\">This article was originally published on 21 December 2020.\u00a0<\/span><\/p>\n<p><span data-preserver-spaces=\"true\">Last updated on the 02 April 2022.<\/span><\/p>","protected":false},"excerpt":{"rendered":"<p>The recent economic downturn has had a major effect on the workforce.\u00a0 We have all seen images of people lined up at Centrelink offices to register for an unemployment benefit.\u00a0 Although many have lost their jobs due to businesses (or entire industries) failing, a good majority of the workforce remains employed.\u00a0 Some sectors are even thriving.<\/p>","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[1],"tags":[],"expertise":[269],"class_list":["post-26288","post","type-post","status-publish","format-standard","hentry","category-uncategorized","expertise-commercial-litigation"],"acf":[],"_links":{"self":[{"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/posts\/26288","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/comments?post=26288"}],"version-history":[{"count":2,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/posts\/26288\/revisions"}],"predecessor-version":[{"id":28292,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/posts\/26288\/revisions\/28292"}],"wp:attachment":[{"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/media?parent=26288"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/categories?post=26288"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/tags?post=26288"},{"taxonomy":"expertise","embeddable":true,"href":"https:\/\/rmolaw.com.au\/zh\/wp-json\/wp\/v2\/expertise?post=26288"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}