Making the unpopular employee redundant – tips for HR

by Victoria Bruce10 Feb 2016
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.”  
 
 

COMMENTS

  • by HR Dude 10/02/2016 12:27:20 PM

    I'm surprised the obvious issue isn't addressed here. If you fire an employee for being 'unpopular' then they might argue that there was bullying involved. Already you have a situation where someone is 'on the out' with the group, if these behaviors include other exclusions, then perhaps they might have a reason to feel that termination was the result of repeated bullying from their team, including malicious rumors. That would be the real risk for me should this course of action be taken.

  • by Sandy Hutchison 10/02/2016 4:16:20 PM

    I would add that it should be a decision based on the role, and not the employee. A true redundancy should be as a result of the role and tasks related to the role, no longer relevant or required by the business, or are being delivered in a different manner. Selection of staff for redundancy shouldn't be based on popularity, but rather if their skills are needed by the business. It is also important not to mix performance discussions and redundancies. If there are performance issues, they need to be performance managed through a formal documented process. Many people try to take the easy way out and make someone redundant that isn't performing, but it can backfire from a legal and tax point of view, if it's not deemed a true redundancy.

  • by Howard 11/02/2016 11:48:01 AM

    I agree with HR Dude and Sandy: this seems like very risky advice to me...

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