Welcome to Sisters In Law, news.com.au’s weekly column that solves all your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise you about your rights when it comes to redundancy.
Question:
I was recently approached for a job and invited to accept it after they offered an attractive six figure package plus 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 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 out of a job! If this company knew they were in trouble, why did they pursue me so aggressively?
Is there anything I can do when I’m out of pocket and out of work! – Shanna, Victoria
Answer:
Shanna, this news would have been such a shock and would have left you in a very stressful situation right now.
It is important that you understand your rights when it comes to a layoff so you know how to best handle the situation.
If the dismissal is not genuine or legal, it is likely to be challenged as unfair dismissal under the Fair Work Act.
These laws apply regardless of whether or not you started the position, as long as you had a signed contract or agreement to start with the employer.
Certain criteria must be met for this to be true redundancy including the following:
1. The job you were hired to do now doesn’t need to be done by anyone. This could be for any number of reasons, such as an operational change in how work is performed, a decrease in work coming in, or even the company going into insolvency.
2. In addition, the employer must have consulted you as required by the award, enterprise agreement or other recorded agreement under which you were employed.
In terms of the consultation process, most agreements require a process that may include giving you information about the proposed changes, taking into account your views, including alternative proposals you have put forward (reduced hours or job sharing).
Your employer should also have clearly explained why your job is no longer required.
In some situations, such as this, there may be opportunities for the affected employee to be redeployed within the organization, taking into account their experience, skills and qualifications and the requirements of the alternative role.
It is not clear from your question whether any of these inquiries were made.
Since you hadn’t started with the company, if you haven’t been consulted properly, it will be very difficult to know where you stand. So, you should make sure you reach out to them and ask them these questions.
If the above criteria are not met, you could challenge this through the Fair Work Commission (FWC).
If the reasons given for your dismissal appear to be discriminatory, such as age or sex, this is illegal under the general protections of the Fair Work Act.
Only 21 days to apply
To challenge the dismissal, you can seek legal advice or contact the FWC immediately, as you only have 21 days from the date of dismissal to make an unfair dismissal application challenging it.
You should also check the payment details provided to you by your employer, as there are many occasions when the employer has not paid the employee their full redundancy entitlements.
The National Employment Standards set out minimum redundancy rights, but some employees have a right beyond that of a modern award, an 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 that you will be entitled to any additional payment on top of your notice period pay severance and pending annual or long-term vacation entitlements.
Consider what kind of outcome you want from the FWC, as there may be opportunities to resolve the matter without going to a hearing; for example, you want another place in the company, an apology, a written reference, support to find another job; given that the compensation limit is the lesser of 26 weeks’ salary or $74,350.
To enforce your legal rights and not let your employer get away with this behaviour, seek legal advice or contact Fair Work.
This legal information is general in nature and should not be considered or relied upon as specific legal advice. Individuals who require private legal advice should consult a lawyer.
If you have a legal question you’d like Alison and Jillian to answer, email stories@news.com.au
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Read related topics: Employment