10 August 2018
Unfair dismissal - Redundancy not genuine
Hi. What is the cause of action and remedy available to an employee when a redundancy is not a genuine redundancy?
Thank you for the question.
Assuming that your reference to 'genuine redundancy' relates to the unfair dismissal provisions of the Fair Work Act 2009 (Cth), s 385 sets out the four elements as to what constitutes an 'unfair dismissal'. One such element is where a dismissal 'was not a case of genuine redundancy'.
Put simply, a redundancy based jurisdictional objection to an unfair dismissal application will not be available where a dismissal does not meet the definition of a 'genuine redundancy'. The unfair dismissal application would proceed to be dealt with on its merits by the Fair Work Commission, unless another jurisdictional objection was available to the respondent.
The meaning of 'genuine redundancy' is found in s 389 of the Act.
A dismissal determined by the Fair Work Commission to be harsh, unjust or unreasonable will be an 'unfair dismissal'.
The remedies available under the Act for an unfair dismissal are found in Part 3-2 Division 4: see ss 390-393. The primary remedies are either reinstatement or compensation.
Regards
Mentor
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