Genuine redundancy: your guide to consulting with employees

Posted on March 31st, 2017

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The Fair Work Commission has recently looked at the extent of an employer’s consultation obligations in order for a dismissal to be considered a case of genuine redundancy.

Section 398 of the Fair Work Act 2009 states that an employer must comply with any obligations to consult with employees set out in an award or enterprise agreement, for a dismissal to be considered a case of genuine redundancy.

A common provision of modern awards is that employers must notify employees where a definite decision has been made to introduce major changes that will have significant effects on employees, such as termination and restructuring of jobs. 

The requirement to consult means employers must discuss with employees, the effect of changes and measures to mitigate or avert adverse effects.

Consultation should provide employees with a genuine opportunity to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action; although, consultation does not amount to joint decision making.

Employers should be aware that a dismissal will not be considered a genuine redundancy if employees are not adequately consulted as soon as is reasonably practicable after a definite decision about the redundancy has been made. If adequate consultation does not occur, the dismissal may be open to challenge under the unfair dismissal provisions of the Fair Work Act.

Tony Cavanagh Director at Mullane & Lindsay Solicitors, NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigation, and employment law. If you require any assistance in these areas please contact Tony Cavanagh to arrange a consultation or contact our Newcastle or Sydney office. 

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