Employees need to be heard to avoid being unfairly dismissed during Covid-19

One thing that really gets me down about Covid-19 is the job losses that are genuine redundancies due to economic slowdown. Listening to the radio the other day and hearing stories of people have been laid off, some stories led me to question whether they were genuinely made redundant, or whether their dismissal was unfair.

A dismissal will be unfair where it is harsh, unjust or unreasonable. In those circumstances the employee can make a claim for compensation or even reinstatement. Dismissing an employee where there is still work available, despite a downturn, could be harsh or unreasonable.

However, where the dismissal is a genuine redundancy the employee will not be unfairly dismissed. A genuine redundancy requires certain things under the Fair Work Act:

• The employer no longer requires the job to be done by anyone such as because of changes due to a downturn in revenue or a restructure of business roles
• The employer must consult with the employee about the redundancy if required to do so by the modern award or enterprise agreement that covers the employee
• The employer has considered redeployment within the business

For many a key issue will be whether they were genuinely consulted on the possible redundancy and had an opportunity to respond to it.

Consultation requires a discussion and consideration of the employee’s requests or circumstances. The employer should consider employee suggestions such as moving to casual, or taking a period of unpaid leave, or being stood down, or reducing hours. In some industries, a stand down of employees would be more appropriate to a redundancy because the role will be required after a temporary lack of work. This does not mean the role is no longer required within the business.

For employers, the advice is simple, you can make things easier by talking and consulting with your employees about possible redundancy before the irreversible decision to dismiss them is made.

Employers should be careful not to pull the redundancy card out too early to avoid a possible unfair dismissal claim by an employee.

Our business law team of Lachlan Edwards and Siobhan Liston are available to advise business clients who need to safely navigate the options available for dealing with employees during this economic downturn. If you would like to discuss this further, you can call Lachlan Edwards on 0427 916 442 or Siobhan Liston on 03 5445 1067 for assistance.