It is relatively common in the construction and architecture industry (and indeed in any industry) for issues to arise whereby the employment of an employee is or may be in jeopardy and the industry employer is considering, or has in fact already terminated the employment of an employee.
Of course, not every possible termination is based on some sort of nefarious conduct committed by an employee, nor based on them under-performing and or not meeting standards or KPIs etc.
Some employment situations are merely being considered for redundancy as a result of changes in technology or or in the business itself or in the wider industry. To be a genuine redundancy, and therefore not a cloak for something else, some criteria exist. Firstly, it has to be the case that the ‘job is no longer performed by anyone.’ That is, that the role itself no longer exists. The law tries to strike a balance between allowing a business to be run how the owners of it see fit and being fair to employees as much as it is possible to do so.
The requirement that the job is no longer being done by anyone does allow an employer to redistribute tasks amongst other employees. In practice, by way of example, this author has seen a few cases where a business development manager role is split up and the tasks are spread amongst one of the owners of the business and one or two other employees. Then the role itself will cease to exist and the first requirement or criteria for a genuine redundancy will be met.
It is important to remember that a redundancy is the role being redundant, rather than the person being made redundant. This means in effect that a role is not made redundant because the person doing it is or was under-performing or committing act or acts of misconduct. In that sense, genuine redundancy is not fault based and in fact a lot of employers are happy to take calls from prospective new employers of the employee concerned and verify that the employee was in fact a good performer and there is or was nothing in the way that they did the job which led to the dismissal but that it was a purely economic, business or structural decision for example made as a result of a restructure in the enterprise (or associated enterprise).
The second requirement for the dismissal to be deemed a genuine redundancy is that the employer has genuinely considered other possible redeployment options for the employee. The law requires the employer not to merely ‘go through the motions’ as to this question, but to give proper thought as to whether there is another roughly suitable and equivalent job in the business the employee in question could or might want to do. Having said that, in a small business, which is so often the context for these issues arising, it is almost immediately obvious that there cannot be the possibility of another role available in the business (or associated business).
The last criteria for a genuine redundancy is that the employer has consulted with the employee in question as to the impending redundancy, in terms of the requirement or requirements in the modern award or enterprise agreement. That is, the employer should, if the modern award or agreement so specifies, discuss with the employee that their role is being considered to be made redundant and the employee is then able to suggest measures or ideas to avert the redundancy or minimise the effects of it. In practice, this requirement is often not contentious as there is some consultation in advance with the employee in a lot of cases, and the ‘bar is not set very high’ in this context. In addition, in a lot of cases, the Fair Work Commission says that even if there had been an adequate amount or level of consultation, the outcome would still have been the same, and the employment still terminated. So no further compensation would have been awarded as a result of a lack of a or a failure in the consultation process.
It is important for readers to be aware that the whole three requirements set out in this article have to be satisfied for the matter to be a genuine redundancy and so if one element is not satisfied (commonly the most contentious being the requirement that the job is no longer being performed by anyone) then the employee would be successful in their unfair dismissal application.
The other thing to be aware of is that genuine redundancy is what is called a ‘threshold’ or jurisdictional question and that means that technically, if the termination of employment was a redundancy then the application for an unfair dismissal remedy cannot proceed further to hearing (or even to Conciliation, the first substantive step in the process). However to avoid the cost stress and time of an unfair dismissal matter proceeding to hearing, usually employers, even if they are alleging a genuine redundancy, are willing to participate in a Conciliation to see if they can possibly avert the matter proceeding further. This article is a summary of the area of redundancy in the employment context and does not profess to be an article that covers all possible issues (such as redundancy pay for example). However this author sees some real value for industry professionals to have the elements set out clearly as they have been here. Though this area is covered by primarily one set of legislation (the Fair Work Act) there are complexities in how the Act’s provisions are interpreted. Professional advise is nearly in all cases best, where the alternative is going in to the area hoping for the best