Enquiry about 'genuine redundancy'

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MargotS

Member
2 December 2018
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1
Dear friends, thank you for this website, and an opportunity to seek wider information. I realise that I am probably in a good position but I still feel hurt and would appreciate your advice.

Two years ago I was seconded to a role in another Department in my organisation which has now been restructured into a smaller section within a larger structure (my Department is still the same size with the same work, but is simply part of a larger structure within the organisation).

It has been clear to me for some time that the role was potentially at risk and it has been verbally confirmed. They are terminating the secondment and I do not have a post to return to (this ceased after the first 6 months of the secondment). They have proposed to offer me a package which my lawyer (and, more importantly, accountant) says seems reasonable. It is exactly what our work Staff Agreement lays out (nothing extra, however it is a reasonable agreement). Work has asked me to list any further requests which I took to mean small items like potentially buying my computer from them. I gave them this verbally but they have not come back to me yet. My last day will be 31 January 2019.

In the meantime my work has advertised two positions (one internally, one internationally) that I could have been a candidate for. This makes me feel that it is not a 'genuine redundancy'. I am above the high income threshold set for unfair dismissal claims in the Fair Work Commission, and therefore would be precluded from making a claim. It feels as if they are making no attempt to redeploy me within the organisation. Are they obliged to (in my experience from abroad they are obliged to consider all staff in a redeployment position prior to advertising)?

Finding a new job will mean moving interstate, when I moved here from Europe in good faith, my partner has not found work yet. Should I accept the proposal on the table or send a list of requests including additional in lieu of notice/golden handshake, via my lawyer?

I appreciate the time you have taken to read this and any response you may have. Thank you.

MS
 

Tim W

Lawyer
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28 April 2014
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If you already have a lawyer, then you should be guided by them.

Few, if any, of the actual lawyers here will be all that keen to second guess the work of another lawyer.
Especially one who has access to the full facts and circumstances, when we here don't.
 

Rod

Lawyer
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As you say you are not eligible for unfair dismissal, then negotiate the best exit you can.
 

MargotS

Member
2 December 2018
4
0
1
If you already have a lawyer, then you should be guided by them.

Few, if any, of the actual lawyers here will be all that keen to second guess the work of another lawyer.
Especially one who has access to the full facts and circumstances, when we here don't.


Thank you Tim and Rod for kindly taking the time to consider and reply. I appreciate your advice.
Best wishes,
MS
 

KidOctane

Active Member
15 January 2019
7
0
31
Hi Margot

I too have been recently made redundant. Even though I too was above the high income threshold I am taking my case to the FWC. Here are the things I learnt during this process.


Know your Modern Award ......I stress that no Employment Contract in Australia can legally offer less conditions than the applicable Award, including all the redundancy provisions. Few ppl understand this, I certainly did not and its opened a handy avenue for my case

The Fairwork Ombudsman does give helpful advice – look at their website

The company is OBLIGED to consult with staff before any (major) redundancy so that at least you know what is coming and if there are any possible mitigation issues you could address. This is part of the FWA and in most awards. Most companies fail to fully understand this.

Redeployment efforts need to be vigorous – the FWC looks unfavorably at token efforts. If the company use has advertised a similar role – you need to ask why you were not considered for that role.

The FWC does no take sides – it only applies the law. Know the Fair Work Act

The company will most likely take an aggressive stance to intimidate you – stand your ground....without being a dick. Always defer to your lawyer and the "opportunity for this matter to be further considered by the FWC at the conciliation session".

HR is NOT your friend, in fact they are your enemy

Get yourself a real expert lawyer (not a general lawyer) – avoid No Win No Fee types as the fees can be very high

Get someone to check your ETP entitlements – in my case they were wrong

Last lesson learnt – if they want to get rid of you, they will and best you be rid of them, but do not cut them any slack and do not go quietly. Leave with dignity and let them look like the a'holes that they most probably are.

HTH

Good Luck
 

MargotS

Member
2 December 2018
4
0
1
Thank you KidOctane, for your advice.

Your path to the FWC is what I was considering. I had the unfortunate experience of making my own staff redundant when I was in the UK (which was one of the reasons I decided to leave) and so I am aware of the role of HR.

HR here were okay here until I got the lawyer involved (I don't think that we have any outstandingly expert employment law lawyers in our state but she was at least used to this companies she had worked with others in my situation) and then they became quite hostile. The lawyer was eye-wateringly expensive (I learned not to send casual email!), but the offer was increased as a result (at least enough to cover her costs).

You are right that they:
* made no effort at redeployment (my experience in the UK we gave 6 months notice and during that time worked really hard to redeploy - 2 staff were engaged elsewhere in the organisation this way)
* tried to talk me out of appointing a lawyer, without independently upping the offer

I recorded all meetings with HR, for private consumption/use.

However I achieved concessions on everything that I asked for (one is likely not to be fulfilled but an attempt was made) and so I took the package. I am now on gardening leave until the end of the month and am making the most of it!

Good luck with your circumstances.

Kind regards M
 

KidOctane

Active Member
15 January 2019
7
0
31
Thanks for your kind words. Good to hear that things seem to have worked out for you – sorta

My case is early days yet but the conciliation meeting date is expected to be in 2-3 weeks time. I am looking forward to it as I may finally get some answers to the questions I have and see the company defend their “we have correctly applied our policy and applicable laws” with the FWC.
 

MargotS

Member
2 December 2018
4
0
1
Thank you. It would be interesting to hear an update about the role of the FWC in your case (as you are over the threshold), realising that you may be under confidentiality.

I found recording the meetings to be helpful for me in framing replies, realising that the recordings could not be used subsequently if the subject had not given consent to be recorded. My HR colleagues were especially unprepared when I presented details of two jobs that were being advertised that I would have been able to do (as would I be able to do another which is coming up). This is partly why the lawyer was effective, I think.

You sound calm but no matter how professionally you approach it there will be stressful times. It is a lot to learn about in a short period of time - that was what I found.

Wishing you good luck and serenity while this plays out.

MS
 

KidOctane

Active Member
15 January 2019
7
0
31
Thanks again

Calm ...... far from it. I was informed of my redundancy on the eve of leaving for a 4 week holiday (which was ruined). I was informed of my redundancy 6 months after I was reassured that I had a future at the company after a major restructure and which I relied upon when rejecting an unsolicited but very attractive job offer with more pay !! I was a raging ball of resentment

But since engaging a solicitor who has assisted with my claim my rage has moved to determination for justice and "sticking to the man !!"
 

Tim W

Lawyer
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