What are my rights if I am made redundant?
Redundancy is a term, which over the last decade, has become a familiar part of Australian corporate culture. Basically, it’s a situation that results when an employer decides a job no longer needs to be performed – by anyone in the company. Often, this kind of situation occurs as a result of corporate restructure or re-organisation, or technological change. There is nothing “personal” in a redundancy – the dismissal is not due to poor individual performance or behaviour.
Right to receive Notice of Termination
If you are made redundant, your employer is required by law to give you notice that you are to be made redundant and your job terminated. The length of notice you can expect to receive varies, depending on your employment contract, and applicable statute or industrial award. Generally, the courts require the notice period be reasonable, and it is common practice for this to correspond with how you are paid, ie. fortnightly or monthly. But other factors may also be relevant in determining “reasonableness”, including the length of service and the nature of the professional appointment.
Under the Workplace Relations Act 1996 (Cth), your boss must give you reasonable notice of termination of your employment, or payment in lieu thereof. The minimum requirement for notice periods is set out below. If you are 45 years or older and have worked continuously for your employer for 2 years, you can expect to receive an extra week’s notice on top of that provided in the table.
|
Employee’s period of continuous service with employer |
Period of notice |
|
Less than 1 year |
At least 1 week |
|
1 - 3 years |
At least 2 weeks |
|
3 – 5 years |
At least 3 weeks |
|
More than 5 years |
At least 3 weeks |
Regardless of whether you’ve been given reasonable notice of termination or not, you cannot be made redundant based on your race, religion, sex, sexual preference, pregnancy, absence from work due to illness or maternity leave, or union membership.
Right to receive Severance Pay
As a person who faces redundancy, you are not automatically entitled to severance pay. Entitlement depends on your employment situation. If you are a public sector employee or are covered by an industrial award, the provisions of the Employment Protection Act 1982 (NSW) applies and you are entitled to severance pay based on the table below.
|
Amount of severance pay |
||
|
Length of continuous service |
Less than 45 years old |
More than 45 years old |
|
Less than 1 year |
Nil |
Nil |
|
1 – 2 years |
4 weeks |
5 weeks |
|
2 – 3 years |
7 weeks |
8.75 weeks |
|
3 – 4 years |
10 weeks |
12.5 weeks |
|
4 – 5 years |
12 weeks |
15 weeks |
|
5 – 6 years |
14 weeks |
17.5 weeks |
|
More than 6 years |
16 weeks |
20 weeks |
If you do not come under an industrial award, then reference will be made to your employment contract to see if entitlement to severance pay exists. Sometimes, even if it was not discussed at the start of your employment, entitlement to severance pay could be implied into your employment contract based on procedures and policies adopted by your employer, and how they have handled previous situations.
Can my boss just sack me?
The answer to this is no, but there are limited exceptions.
For example, if you are an employee on probation or working on a casual basis, you could be sacked without any reason being given, though your employer must still provide you with reasonable notice of termination. Again, what is reasonable depends on your employment contract
Another example is if you have been found by your employer to be guilty of serious misconduct, such as using obscene language or being drunk in the workplace, or involved in criminal activity such as theft or fraud. In such situations, your employer may immediately dismiss you without any notice period, or payment in lieu thereof, being required.
Generally, you cannot be dismissed without at least being told the reason and given an opportunity to respond, as otherwise the dismissal could be considered to be unfair. Whether the Industrial Relations Commission decides the dismissal to be “harsh, unreasonable or unjust” depends on how it was conducted. Questions that the Commission may ask include the following: Was the reason for the dismissal was communicated to you? Did you have an opportunity to explain? If the dismissal was based on unsatisfactory or poor performance, were you given prior warnings and training opportunities to improve?
What should I do if I have been unfairly dismissed?
If you are an employee in New South Wales and earn less than $81,500 (indexed annually), you may be able to seek relief under the State’s unfair dismissal laws, by lodging a claim with the Industrial Relations Commission. You will need to make your decision quickly, as you have only 21 days after being dismissed to do so. If you are a casual employee and have been employed in the same position for at least 6 months, you may even have a claim for unfair dismissal.
Once your application is lodged, a conciliation hearing is arranged between the employee and you to try to resolve the issues. If this is unsuccessful, the matter will proceed to an arbitration hearing. The entire process is less formal than a court, and the Commission aims to deal with your application as quickly as possible. You can, at any point during the process, seek assistance with representation from a lawyer or qualified agent. Once both sides have been heard, the Commission will then make a decision on your claim. Their orders may include reinstating you to your former position, ordering your employer to re-employ you in another position, or compensating you for lost wages and entitlements.
Do I have to go to court?
If you are not a public sector employee, are not covered by any industrial award and earn more than $81,500 (indexed annually), you are not covered by State and Federal laws on unfair dismissal. In this instance, you will need to lodge your claim in a court of law.
