In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises.
If, in good faith, the employer:. I have a highly regarded and envied success rate representing employers and employees both in prosecuting and defending unfair dismissal , unlawful and wrongful dismissal cases and my rates for doing so are as far as I know the most economical in Western Australia. If you read my posts on my law blog page, you will see that my experience speaks for itself.
You are very welcome to browse the posts from the extensive index. General protections provisions and complex anti-discrimination laws exist under the Fair Work Act but that very technical jurisdiction is difficult to understand for many and is costly to use and defend. I can help you assess your workplace discrimination issue, the available strategies and remedies quickly, clearly and with a minimum of fuss and jargon. I offer telephone and Skype consultations which are affordable, convenient and provide fast outcomes.
I am very conscious of the capacity of such issues to cause serious stress both for employers and employees and fully understand the urgency of identifying a workable solution. These days I do so as an industrial agent and at rates and fees which are a fraction of those of my legal colleagues.
You can read how and why I can do this in the About tab above, where there are several paragraphs about my career and which explain in a nutshell who I am, what I do and why I do it. The general protections in the Fair Work Act contain a prohibition upon an employer taking adverse action, which includes a […]. Reinstatement for unfair dismissal is rarely awarded by the Fair Work Commission, even where an employee wins an unfair dismissal […].
Of the 12 employees who held positions as material handlers, Mr Phillips obtained the third-lowest KSA. Mr Phillips was advised that his position was going to be made redundant.
Mr Phillips applied for a different role under the program, but was considered unsuitable for the position. The employee who was selected for the position under the program declined the position and Boeing ultimately determined that position would also be made redundant.
Boeing informed Mr Phillip that it was not possible. Deputy President Colman considered both arguments raised by Mr Phillips. DP Coleman found that Boeing satisfied Requirement 3 — that there were no reasonable redeployment opportunities for Mr Phillips at Boeing or any associated enterprise.
However, there is no requirement for employers to insource any work outsourced to an independent contractor. Redundancies are not without legal risks. Employers who are considering redundancies ought to ensure that they satisfy the requirements for a genuine redundancy to mitigate the risk of unfair dismissal claims.
This includes:. Disclaimer The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. What are you searching for?
Yes No. Why wasn't this advice helpful? It isn't relevant to my situation. It doesn't have enough detail. I can't work out what I should do next. I don't understand. You've reached the character limit. Thank you, your feedback has been submitted. In this section. Whilst there may be certain industry norms in certain sectors, it is down to individual employers to determine whether it is possible or desirable to offer an enhanced redundancy payment.
If you do not have the right skill set, there is a question as to whether your employer should provide training to enable you to fulfil the elements of the role which are outside your present capabilities. Whether or not this is reasonable for your employer to do this depends on the situation.
For example, if you are already on track to develop the required skills and just need a bit of extra training, it is likely to be reasonable to expect your employer to provide training and offer a trial period in the new role. However, if the skills and experience which are required is substantially greater than those held by you and it would take a significant amount of time and training for you to develop the skills , then it is unreasonable to expect your employer to support you on this.
Remember, however, that your employer does still have a duty to consider whether there are any other suitable alternative roles that you could apply for see above. You are likely to have difficulty here. Your role at work may have changed beyond all recognition or even disappeared altogether. It may also be that you work has dried up. In any of these scenarios, your employer may simply refuse to make you redundant. In many cases, this is for financial reasons- a long serving employee may otherwise be entitled to many thousands of pounds especially where there is an enhanced redundancy scheme.
Contrary to what many believe, there is no easy path to insist that your employer makes your redundant, especially as you have no general duty to be provided with work save for some exceptions such as to maintain your professional skills or public profile.
So what could you do? Well, if your employer does not have the contractual right to change your role to a material extent without your consent, then you may be in a position to resign and claim constructive dismissal. This does not mean though that you would automatically receive your full redundancy pay. If you win a claim, you would be awarded a basic award by the Employment Tribunal, which happens to be the equivalent to statutory redundancy pay.
You may also be entitled to compensation for loss of earnings, but this would not necessarily include the enhanced redundancy pay. This would only be awarded as compensation if the Tribunal was convinced that you would have properly been made redundant had your employer not been in breach of contract for example, by changing your role.
This is not always an easy argument to win. There is also the possibility of raising a further argument to claim an enhanced redundancy payment. You may be able to argue that by changing your role unilaterally, your employer has actually dismissed you as a matter of law even if you have continued on the payroll for a short period. This would then allow you to argue that you have been dismissed for reason of redundancy, and if this is accepted, then you would be contractually entitled to your enhanced redundancy pay.
You could then seek an order from the Employment Tribunal for the redundancy payment forcing your employer to make this payment to you. These are very tricky legal arguments, but ones worth properly exploring. There is normally no legal obligation for your employer to offer you an appeal against dismissal in a redundancy situation unlike in disciplinary proceedings for misconduct. A dismissal will not automatically be unfair if a dismissal is not offered. The ACAS code of practice does, however, say employers should be encouraged to offer an appeal in a redundancy situation.
Furthermore, a tribunal could still find a dismissal to be unfair when having regard to all the relevant circumstances as they should and which includes whether the denying of an appeal fell outside the band of reasonable responses. If this is the case, then you should be offered an appeal. A failure to do so could amount to a stronger claim for unfair dismissal assuming you have more than 2 years service.
By not offering an appeal, there is finality in the selection process. On the other hand, allowing an appeal does have an advantage for an employer to fix some procedural flaws, for example a lack of consultation or not including a sufficient number of people in a selection pool. This will take away from you what might have been enough to make a particular dismissal unfair, and you would lose the opportunity to then make that claim.
This is because your appeal after having been won, with the procedural flaw then ironed out gives you no basis to make a claim- even if the decision to dismiss you still stands. Please click here to go to the Maternity page. If you have been employed with your present employer for a minimum of 2 years, you are entitled at the very least to a minimum statutory redundancy payment from your employer. You may be entitled to a larger amount of compensation because your employer has a contractual redundancy scheme, or there is custom and practice of them providing enhanced payments.
Please click here to access the Landau Law redundancy payments calculator. This is correct as at Where your earnings vary each week, an average of the 12 week period leading up to the redundancy should be used. Find out how to calculate an average pay for bonuses and commission by clicking here and jumping to the.
Gov site. Check what statutory redundancy payment you would be entitled to by clicking here to access the Landau Law Redundancy Calculator. Even if you are entitled to redundancy pay, there are reasons you may not be entitled to receive a payment, for example:. Your redundancy pay statutory or contractual should be based on your normal weekly pay before you started your maternity leave. It should not be based on your statutory maternity pay or your contractual maternity pay. If you have contractual redundancy pay, then your employer should also base this on your normal pay before you went on maternity leave.
Otherwise this could be pregnancy discrimination.
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