As organisations cut costs, the need for redundancies arises. Is selecting the unpopular employee opening up the floor for an unfair dismissal case?
Making someone redundant is always a tough call for HR managers. But what if there is an employee who nobody really likes. What could go wrong if you select them for redundancy?
As long as the organisation has a genuine reason for the redundancy and could raise the case that this particular employee was selected due to a bad personality fit, then this should protect employers from potential unfair dismissal claims, says Lucienne Gleeson from PCC Lawyers.
“A person can be selected for redundancy based on any reasons that are not prohibited at law,” Gleeson told HC Online.
“For example, if an employee were to be chosen to have their position made redundant because they are pregnant or they have a disability this would be unlawful under the Fair Work Act 2009 (Cth) and the various state and federal discrimination laws,”
“Further, if a person made a complaint or inquiry about their work, or utilised some other workplace rights under a workplace law, and was as a result of this made redundant, they would have recourse under the Fair Work Act to a general protections claim and could seek reinstatement.”
She says the redundancy needs to be for a genuine reason such as the need to cut costs or lower headcount.
“You cannot simply decide to create a redundancy situation to get rid of a person that does not gel well with the team,” Gleeson says.
“If it is not genuine then the employee could lodge an unfair dismissal application seeking reinstatement to the role,”
However, if an employee’s position was selected for redundancy purely on the basis that they did not get on with others in the team, and did not have the right personality fit, this would be a lawful reason - providing there are no other unlawful reasons also weighing on this decision.
Under the Fair Work Act, employers are not required to provide a particular reason as to why that individual was selected for redundancy.
“There are obligations, if the employee is covered by an Award or Enterprise Agreement, to consult about redundancy,” Gleeson says,
“However this only requires providing information on what the proposed changes are, who will likely be affected, that this may lead to termination of their employment and a discussion of potential ways to mitigate or avert the impacts of this change on the person.”
As long as the organisation has a genuine reason for the redundancy and could raise the case that this particular employee was selected due to a bad personality fit, then this should protect employers from potential unfair dismissal claims, says Lucienne Gleeson from PCC Lawyers.
“A person can be selected for redundancy based on any reasons that are not prohibited at law,” Gleeson told HC Online.
“For example, if an employee were to be chosen to have their position made redundant because they are pregnant or they have a disability this would be unlawful under the Fair Work Act 2009 (Cth) and the various state and federal discrimination laws,”
“Further, if a person made a complaint or inquiry about their work, or utilised some other workplace rights under a workplace law, and was as a result of this made redundant, they would have recourse under the Fair Work Act to a general protections claim and could seek reinstatement.”
She says the redundancy needs to be for a genuine reason such as the need to cut costs or lower headcount.
“You cannot simply decide to create a redundancy situation to get rid of a person that does not gel well with the team,” Gleeson says.
“If it is not genuine then the employee could lodge an unfair dismissal application seeking reinstatement to the role,”
However, if an employee’s position was selected for redundancy purely on the basis that they did not get on with others in the team, and did not have the right personality fit, this would be a lawful reason - providing there are no other unlawful reasons also weighing on this decision.
Under the Fair Work Act, employers are not required to provide a particular reason as to why that individual was selected for redundancy.
“There are obligations, if the employee is covered by an Award or Enterprise Agreement, to consult about redundancy,” Gleeson says,
“However this only requires providing information on what the proposed changes are, who will likely be affected, that this may lead to termination of their employment and a discussion of potential ways to mitigate or avert the impacts of this change on the person.”
