Managing Redundancies and Jobkeeper 2.0

by | Oct 8, 2020 | Blog

As the financial support and workplace flexibility under the Jobkeeper have ceased to apply to many organisations as from the 28th of September, it is important to be able to understand and safely navigate your options including redundancies.

Legacy Employers

Employers who received the JobKeeper payments for the initial phase of the scheme, but no longer qualify, they may continue to access certain flexibilities under the amendments to the Fair Work Act as part of the JobKeeper legislation, if they meet the eligibility criteria, which is based on ATO‘s 10% decline in turnover test.

Genuine Redundancies

It’s no real surprise that many employers have been and will continue to respond to the economic impacts of the pandemic by making staff redundant. 

Importantly, the Fair Work Act 2009 still requires that every redundancy is genuine, and a fair process be followed when making an employee redundant.

For a redundancy to be genuine, and to operate as a defence to an unfair dismissal application the following three elements must be satisfied:

  1. The employee’s job was no longer required to be performed by anyone because of changes in the operational requirements; (the duties may still exist, but are re-distributed)
  2. You have complied with the obligation to consult about the redundancy; and
  3. It would not have been reasonable in all the circumstances for the employee to be redeployed within the business

Consultation

Consultation requires meeting with each employee considered for a redundancy to explain the possibility that their role may cease to exist. During this consultation, it is important to note that no final decision has yet been made.

Employees must be given an opportunity to provide feedback and input as to minimise the effect of the decision as well as involve unions (if required by an award, industrial instrument or the law).

Employers must consider such feedback, prior to making a final decision.

If a redundancy is not genuine, employees may make an unfair dismissal claim with the Fair Work Commission.  

There are a number of other options organisations should consider before resorting to making staff redundant

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