Redundancy and Unfair Dismissal Advice
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Theoretically the decision to retrench an employee is a managerial prerogative. If there is insufficient work or business an employer is entitled to retrench staff. However, in practice, this management power has been reduced by decisions of the various industrial tribunals and courts by the terms of some industrial awards and legislation.
An employee has the right to contest a dismissal which he or she believes is harsh, unjust or unreasonable. The case law shows that a redundancy can also be challenged under the unfair dismissal provisions and that the absence of procedural fairness will be crucial to the outcome of the decision.
Employers have obligations to:
- Canvass alternatives to redundancy;
- Consult with the employee and, if relevant, his or her union;
- Provide adequate notice;
- Apply objective selection criteria in determining which employee is to be made redundant; and
- Treat the matter in a manner which is likely to be considered fair by any reasonable person.
Failure by an employer to ensure that these principles are complied with may lead to a finding that the redundancy is a dismissal which is harsh, unjust or unreasonable. In the case of Shearer the President concluded that the law clerk had discharged the onus of establishing that his dismissal was unfair. She ordered the re-employment to his former position and payment of his full back wages as from the date of his dismissal to the date of his re-employment.
Whether you are subject to an industrial award, are working under any contract of employment, or employed under a loose contractual arrangement you should seek legal advice before agreeing to accept any redundancy package. It is important to be aware of the numerous ways in which the law may assist you and protect you from unfair dismissal.
Should you have any queries, please do not hesitate to Brett Samuel on 8320 2957
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