However an unlawful selection process may be relevant to a claim under the general protections provisions of the Fair Work Act or under state or federal anti-discrimination laws. Criteria in s. A failure to consult with employees about redundancy can mean that the Commission may find that it was not a case of genuine redundancy.
Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made. Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal.
Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals — before the mind of the executive becomes unduly fixed. The employer experienced a reduction in business and consequently made a number of positions redundant.
The employer met with the affected employees to discuss the need for redundancies and sent letters explaining the need for redundancies. The employee sought further information regarding the redundancy and requested recognition of an additional year of service. The employer provided all of the additional information sought by the employee and granted the additional year.
The employer had to consider redundancies after experiencing a large budget deficit. The employer communicated its intention to initiate redundancies to the employee on a number of occasions, including discussions regarding restructuring the departments which would result in merging the roles of 2 managers into 1. The employer invited input from the affected employees regarding the proposals. The employee was offered to be redeployed into another position as a Manager, however the employee rejected this offer.
It was held that the employer met their consultation obligations. Employer notified employees of proposed redundancies in writing and then met with the employees to discuss the changes. The meeting with the applicant was brief due to the hostility the she showed towards the employer. However meetings held with the other employees involved an extended discussion about the proposed redundancies.
It was held that consultation with the employee was truncated as a result of her attitude and actions, rather than by any refusal by the employer to consult. The consultation obligations in the modern award were satisfied. Note: The dismissal was found not to be a genuine redundancy because it would have been reasonable for the employee to be redeployed. The employer made 16 positions redundant. The employer consulted with the union and had meetings with affected employees, to discuss the need for redundancies.
The union also held meetings with the employees to discuss the changes. Although the employer did not follow the requirement to consult in writing, it was found that, in totality, the employer complied with the requirement to consult. A warehouse manager's position was selected for redundancy due to a decline in business. However, it was found that the employer failed to properly consult with the employee regarding the termination of his employment. The failure to consult was the only reason the dismissal was not found to be a genuine redundancy and the termination of the employee's employment was found to be unfair, notwithstanding the fact that there was a valid reason for the dismissal.
The employer did not consult with the employee regarding the decision to make her position redundant until after a definite decision had been made about the redundancy, and about the creation of a new position and who would fill it. The employee had no opportunity to convince her employer she could fill the new position.
Note: Although it was found that the dismissal was not a case of genuine redundancy, it found that the employee declining the employer's offer to remain employed while looking at redeployment options was a valid reason to terminate the employee's employment. Therefore the dismissal was not harsh, unjust or unreasonable and the employee's application was dismissed.
After the employer decided to make positions redundant, the employer held one-on-one meetings with the employees to discuss the redundancies. However, the employees had no input into issues such as who was selected, redeployment, payments and alternatives to redundancy. It was held that the dismissal was not a genuine redundancy. The employer had been experiencing financial difficulties and decided to restructure their operations.
The employer failed to notify and consult with the employee in accordance with the award. Note: Although the termination was not a case of genuine redundancy due to a failure to consult, it was found that the same conclusion would likely have been reached whether or not there was a failure to consult.
Therefore, the dismissal was not unfair. The employer issued a notice advising employees of a considerable reduction in available work and therefore a need to reduce staff numbers. It was found that the notice did not constitute adequate consultation. The employer claimed that the employee had been advised of the closure of the warehouse in which she worked. It was found that even if the alleged telephone conversation occurred, the employer did not inform the employee that her role would no longer exist.
As the employee was neither given an opportunity to influence the decision, nor was she considered for redeployment into another role, it was found that consultation did not occur and the dismissal was not a case of genuine redundancy.
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Back Partners Partner Programme Overview. Back About Us Our Story. Back Resources Resources Hub. Back Topics All Articles. How long is the redundancy consultation period? Here's what's in store: What is a redundancy consultation period?
How long does it last? Providing redundancy notifications Consultations: what to do What evidence do you need to provide? What is a redundancy-consultation period? Even though there currently aren't any set rules for teams below 20, it's wise to hold consultations and understand your people. Speak to your people. Communicating during the redundancy-consultation period is important because: 1. Everyone deserves to know where they stand. If things do turn sour, you could risk appearing unfair in front of an employment tribunal.
For example, if a claimant can prove you failed to consult them during a period before their redundancy, you're then at risk for hefty tribunal fine.
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