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LawAccess NSW > Representing Yourself - LawAssist

Can a redundancy be an unfair dismissal?

​Case study - IsadoraCase study icon

Isadora works as a heavy vehicle mechanic for a mining company. Isadora has clashed with her boss on a number of occasions but they have always managed to get their jobs done. 

After 4 years of service, Isadora was told that the company wasn't making a profit and her position would be made redundant.

Last week, Isadora noticed that the company was advertising a role that required someone to do the work that Isadora had been doing, for the exact same hours as Isadora had worked, on the same salary.

​A position is made redundant when an employer no longer needs a role to be performed, or no longer needs the same number of employees to perform certain tasks.

This might happen because an employer is going out of business or is restructuring and has transferred tasks to other employees.

If your employer told you that your position has been made redundant, you should consider whether the redundancy was genuine. If it was not genuine, you may be able to make an unfair dismissal application.

    ​​​When a dismissal will be a genuine redundancy

    A redundancy will be 'genuine' if:

    • your employer no longer needs anyone to do your job because they have made changes to the operational requirements of the business, and
    • there is no other job at that workplace or at an associated entity that you could be transferred (redeployed) to, and
    • your employer has done what it says in your modern award or enterprise agreement about consulting about the redundancy.

    If the redundancy was genuine, you will not be able to claim you were unfairly dismissed. However, you should receive any redundancy pay owed to you. If you have not received redundancy pay, or are not sure that you have received the correct amount of redundancy pay, you should get legal advice.

    When a dismissal may not be a genuine redundancy

    A redundancy might not be considered 'genuine' if:

    • your employer re-fills your position with a new employee, or
    • there is another job at that workplace or at an associated entity that you could be transferred (redeployed) to but your employer does not do this, or
    • your employer does not consult employees before making positions redundant.

    If a redundancy was not genuine, it is possible to make an unfair dismissal application to the Fair Work Commission (the Commission).

    Alert Icon  If you are not sure if your redundancy was genuine, you should get legal advice.

    Alert Icon  If you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed. Make sure you file your application before you run out of time!

    Hint icon  An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both.

    Icon - alert  If you haven't been dismissed but you are experiencing workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice about your options.

    For answers to commonly asked questions, see What is unfair dismissal? - Frequently Asked Questions.
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