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Australian businesses are facing difficult times caused by the COVID-19 virus. Some are shutting and others are facing sluggish demand. For business reducing labour costs this has been seen as vitally important.

Costs have been reduced by:

  • Requesting staff to take leave
  • Reducing hours
  • Standing staff down
  • Termination on the basis of redundancy.

Sadly many Australian have been retrenched. It is anticipated that many more will be. If you have been retrenched do you have a claim for unfair dismissal?

The answer is maybe. Section 382 defines who is protected from unfair dismissal. Here is a link to the section.

As you can see it excludes cases of genuine redundancy. Genuine redundancy is defined in section 389. There are 3 main aspects:

  • It is when an employer determines that it no longer requires the position to be performed by anyone due to changes
  • It has complied with any obligation in an industrial agreement to consult
  • It has considered redeployment.

There is no doubt that the changes to business conditions caused by the COVID-19 virus will normally satisfy the first element of the definition. Challenges are more likely to succeed on the issue of consultation.  Consultation needs to be genuine and not just going through the motions. If any suggestions are made by an employee they need to be considered.

If any employee suggests reducing their hours or being stood down these need to be genuinely considered.

The legal response to the challenges of the COVID-19 virus is rapidly evolving over time. A compelling argument could be made in a number of cases that an employer who refuses to consider a stand down as opposed to a retrenchment may be breaching the consultation requirements (where applicable). This could mean that the dismissal is unfair.

If you have been dismissed you need to act quickly. Any claim for unfair dismissal must be made within 21 days of the date of dismissal. There is only a provision to extend this time in exceptional cases.

This article is general and not meant as legal advice. You should obtain advice on your own situation.

Our employment team is only a phone call away. Call us today to understand if you have an unfair dismissal claim and how we can help you. Phone 13 535 57.


Image Credit – Khosro ©