Workplace change and redundancy in times of economic uncertainty

Transcription

1 Workplace change and redundancy in times of economic uncertainty Presenter: Alison Baker, Partner Phone:

2 Victorian public service jobs slashed State may cut more jobs

3 Overview Cost cutting measures and workplace change strategies Legal risks associated with redundancies Tips for managing the risks associated with redundancies

4 Cost-cutting measures and workplace change strategies Reducing leave balances Reducing overtime Reducing levels of casual staffing

5 Cost-cutting measures and workplace change strategies Reducing shifts/hours of work Part-time work arrangements Pay freezes Recruitment freezes

6 Managing the legal risks with redundancy Victorian Public Sector requirements Consultation Support to Affected Employees Redeployment Retrenchment and redundancy packages Risk of claims under the Fair Work Act: Notification and consultation for group redundancies Unfair dismissal General protections/adverse action claims

7 Genuine redundancy a) Employer no longer requires job to be done by anyone due to operational requirements b) Employer has complied with consultation obligations c) Employee cannot be redeployed in company or group company

8 First Limb operational requirements

9 First Limb operational requirements Examples of operational change: Tasks can be performed by a machine Business is shrinking and less people required to complete the available work Redistribution of tasks to several employees following restructure Identify/gather financial and other documents substantiating decision

10 Second Limb - consultation

11 Second Limb - consultation Wang & Ors v Specialty Fashion Group Ltd [2011] Considerations: Is the employee under an award? Does that award require consultation?

12 Second Limb - consultation Key lessons: Don t present redundancy as fait accompli Keep open mind re redeployment and suggestions for avoiding redundancy

13 Third Limb redeployment

14 Third Limb redeployment Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] upheld on appeal Identify all suitable vacant positions including lower-paying and/or lesser responsibility roles in company and group companies Even if no obligation to consult exists, it is still prudent Consult with the employee as to whether he/she would be willing to perform positions identified

15 Redundancy and unfair dismissal Harsh, unjust or unreasonable Employer must have a valid reason; Employer must provide procedural fairness. Employees can make a claim if they: Have completed a minimum period of employment; and Are covered by a modern award or enterprise agreement; or Earn less than $118,100 per year (indexed annually).

16 Redundancy and unfair dismissal Employees must lodge their claim with Fair Work Australia within 14 days of dismissal. Remedies: Reinstatement; or Compensation (if reinstatement not appropriate) lesser of: up to six months pay 50% of high income threshold.

17 Redundancy and Adverse Action claims

18 Redundancy and Adverse Action claims Available to all employees: including casual and probationary employees regardless of their remuneration

19 Redundancy and Adverse Action claims Reverse onus of proof Remedies: Uncapped damages Reinstatement Interlocutory injunctions Civil penalties

20 Redundancy and Adverse Action claims Employer must not take adverse action, because of employee s protected attribute ; or workplace right.

21 Redundancy and Adverse Action claims Workplace right has very broad meaning including having made a complaint in relation to their employment

22 Redundancy and Adverse Action claims Barclay v Bendigo Regional Institute of Technical and Further Education - The objective causal intention test applied You take into account the intention of the decision maker but it is not decisive What is the unconscious motivation?

23 Redundancy and Adverse Action claims Winter v Ostwald Brothers Civil Pty Ltd [2012] Employee declared redundant after returning from period on WorkCover. Court looked to the real reason, or the unconscious reason for the action not the reason the decision maker asserts, despite whether genuine or not. Held: due to documentation, court found there to be sound operational reason for employees redundancy.

24 Take home messages Have sound operational reason for redundancies Document those reasons so you can defend them Ensure compliance with notification and consultation requirements Consider and document redeployment options