The COVID-19 pandemic has changed the way that work is performed in most industries and workplaces.
Part of this change has involved some workers loosing their jobs. Early signs are that claims before the Fair Work Commission for unfair dismissal have surged. On 25 May 2020 the general manager of the Fair Work Commission, Ms Bernadette O’Neill said that unfair dismissals have spiked by 70%.
Employers who determine to make a position redundant needed to comply with some requirements. The very heart of the redundancy is a decision by an employer that it no longer wishes the position to be performed by anyone. It is not a redundancy to replace one employee with another.
If a modern award or an enterprise applies to a particular position, further requirements need to be complied with Central is consultation. Consultation should take place before any final decision to make a position redundant is made. Any input provided by an employee should be carefully considered.
An employer also should consider whether there are any reasonable opportunities for redeployment.
An interesting issue has emerged. The issue is that employers who are eligible for JobKeeper but have still proceeded to make a position redundant.
Some employees argued that this is unfair and argue, why should they be terminated when an employer is receiving a subsidy?
The Fair Work Commission considered this issue in Matthew Brown v My Shared Services Pty Ltd. Here is a link to the decision. In that decision, in part, The Commission determined that an employer who failed to consider JobKeeper had unfairly dismissed a worker.
Further cases will be considered by the Commission over the next few months.
The message for employers and employees is that an employer should actively engage with its workforce and consider the individual circumstances of each employee before any final decision is made.
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