What happens in the case of a genuine redundancy?

This guidance note explores the critical concept of genuine redundancy under the Fair Work Act 2009 (Cth) (FW Act), providing essential insights for employers and practitioners navigating redundancy and unfair dismissal claims. It outlines the statutory requirements that define a genuine redundancy, the consultation obligations under modern awards or enterprise agreements, and the complexities surrounding redeployment of employees. The note also addresses exceptions, small business considerations, and the consequences of a redundancy not being genuine.

Topics Covered

• Which employees are eligible to make an unfair dismissal claim?
• Requirement to consult about potential redundancies
• Do small businesses have special unfair dismissal arrangements?
• What are redundancy pay entitlements under the NES?
• What steps are involved in initiating and resolving an unfair dismissal claim at the FWC?

Essential Insights

• Understand the three statutory conditions that determine a genuine redundancy under s 389 FW Act.
• Assess the pivotal role of consultation obligations within applicable modern awards or enterprise agreements.
• Recognise why genuine redundancy protections exclude dismissals motivated by under-performance or personal conflicts.
• Explore the nuanced requirements and limitations around redeployment, including international and associated entity transfers.
• Evaluate the impact of failing genuine redundancy criteria on unfair dismissal claim outcomes and remedies.
• Consider the special treatment and limitations applying to small businesses in redundancy scenarios.