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NSW Company Relocating to Melbourne - Seek Redundancy?

Discussion in 'Employment Law Forum' started by BChalice, 3 December 2015.

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  1. BChalice

    BChalice Member

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    My boss just told me he will be closing our small office in Sydney and moving all operations back to Melbourne. If I want to keep the job I will need to move down there. My job role will remain largely the same.

    I love Melbourne, but due to family reasons, I am unable to move and will have to reject the offer.

    How good a case do I have to seek a redundancy? How would I go about "asking" for redundancy in my written reply to the offer (For example "I cannot move...please grant me a redundancy")?

    We are part of a bigger company with more than 15 people, so they can't get out of paying my redundancy. Two other people cannot move (they have previously told the boss) and have already received their redundancy.

    Also, I have been with the company for 8-1/2 years. I know before I reach 10 years, if I resign on my own, I get no long service leave. Would my request for a redundancy as above count the same as a resignation?

    I forgot to mention the boss did offer some corporate relocation assistance (moving cost, temporary housing for a few weeks, doesn't sound like super-generous), but it is irrelevant as my family has no intention to move.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi BChalice,

    The fair work commission recently examined this issue with an employer who moved its employment location 34 km away and expected its employees to still travel that distance to work. In determining whether the relocation triggered redundancy rights of the employees, the court considered:
    • the extent to which the relocated employees’ terms of employment expressly permitted the transfer to the new location;
    • the distance between the workplace locations; and
    • the impact of the relocation on employees.
    The employees, in that case, were covered by an enterprise agreement which adopted the standard definition of redundancy, i.e. where the employer no longer requires the employee’s job to be done by anyone. Furthermore, the effect of the employer's decision in that was that it no longer required the relevant jobs to be carried out at the original location so their jobs were no longer required to be performed by anyone.

    Before an employee will be entitled to redundancy pay their employment must end and they must not reject an offer of suitable or acceptable employment. However where an employer repudiates the employment contract or acts as though it no longer considers itself bound by the contract and seeks to impose a new one in its place, then the employment will be regarded as terminated.

    So in short, it will depend on a number of factors. Read your employment contract carefully and determine: (1) if it allows a transfer and (2) what it defines as redundancy, and then determine whether a repudiation of your contract has occurred.
     
  3. Serge Gorval

    Serge Gorval Well-Known Member

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    Hi Bchalice

    If you don't accept the relocation offer, your employment by its very nature is terminated by way of redundancy on the fact that your role ( in Sydney) has ceased to exist. you are entitled to redundancy pay in accordance with the NES at a minimum unless your contract/award provides for additional benefits.

    In respect to long service leave, if you are made redundant you also qualify for pro-rate LSL based on your length of service.
     

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