VIC Redundancy - Not Eligible?

[ElizabethJoseph]

I was a permanent part time employee with my employer under clerical awards.

I was offered today to change my employment contract to casual with a higher pay. I was not aware that I am not eligible for redundancy pay as it is a small business. There are only less than 15 employees there at the moment. I asked them what is the other option and I was told I can go ahead with redundancy. I was not told I won't be paid anything under redundancy being under small business.

I accepted to go ahead with redundancy and now after referring to the forums here, I realise I won't be paid anything but annual leave and superannuation. Based on what I told them they issued me a letter of notice of 4 weeks. Is there a way I can revert this stating I was unaware of no redundancy pay.

Also please note that they have mentioned in the letter for me that they can't afford 2 bookkeepers so they are making me redundant. My boss told me they are retaining the other bookkeeper based on seniority.

 

[Ivy]

Hi there,

You say that there are "only less than 15 employees there at the moment". Have they just made some other people redundant or otherwise let them go? Because if a business is downsizing, then the number of employees is determined by counting how many people were there before they started the rounds of redundancies. So they may still owe you redundancy pay if the business up until very recently had more than 15 employees.

 

[ElizabethJoseph]

Hi Ivy,

Thanks for the reply. No there has always been less than 5 employees from when I joined. They have sent off another employee too but I am not sure if he left or they made him redundant.

Hi there,

You say that there are "only less than 15 employees there at the moment". Have they just made some other people redundant or otherwise let them go? Because if a business is downsizing, then the number of employees is determined by counting how many people were there before they started the rounds of redundancies. So they may still owe you redundancy pay if the business up until very recently had more than 15 employees.

 

[Ivy]

Hi Elizabeth,

For future reference, please submit one post with your various issues; it's much easier to get a picture of your situation that way.

You're right that as an employee of a small business that they don't have to pay you redundancy pay. It also sounds like you have a genuine redundancy and so wouldn't have a case for unfair dismissal. However if you do think that there is an unfair dismissal (harsh, unjust or unreasonable), you have 21 days to apply to the Fair Work Commission from the notification of your redundancy. Have a look at these two blog posts about unfair dismissal and redundancy for more information:
Redundancy: A Quick Guide for Employees - LawAnswers.com.au Blog
Unfair Dismissal and the Fair Work Commission - LawAnswers.com.au Blog

If this is a genuine redundancy and you want to remain employed, your best option is to speak to your employer and see if they will employ you casually.

Remember that if you are employed casually but do the same hours each week, legally this is considered to be part time employment (or full time depending on how many hours you work per week). Employers can't avoid paying annual and personal leave just because they have labelled you as casual when in fact you are working the same hours every week.

 

[ElizabethJoseph]

Thanks Ivy for the detailed explanation (for both my posts)

Let me think about what exactly I should do. I need to discuss with my family as well before I do something.
I will be posting here if any updates.

 

[ElizabethJoseph]

Hi Ivy,

My boss had a discussion again with Mr and he doesnt want me to leave.
He wants me to take up the offer of casual Job and I have agreed to do so.
I need to know 2 things.
You had told me that casual employees may still be eligible for paid annual leave and sick leave. Can you send me link of any case that had this judgment or any other link that I can show to them. I cannot show this forumn to them and even if I do they won't accept it.

At the moment I am being paid $23/hr as a permanent employee. How much should they pay me when I am casual. Is there any criteria for this or is it between the employee and employer.

Thanks.