Business restructuring is a convenient tactic for some employers who are looking to reduce labour costs. Redundancies are common in the process of conducting structural changes, and the section process for determining who is made redundant can be unlawful if proper process and procedure is not followed.
Restructuring is legitimate when the employee’s dismissal is a case of “genuine redundancy” and the employer no longer requires the job to be performed, pursuant to section 389 (1) (a) of the Fair Work Act 2009 (Cth) (FW Act). However, it will fail to be a genuine redundancy if the business intends to simply employ someone else to perform the same role and if the selection process fails to be fair, non-discriminatory and transparent. Therefore, it is unlawful for an employee to be selected for redundancy based on their age and the employer may be liable for an Unfair Dismissal Claim.
Further, s389 (2) of the FW Act requires that employers consider suitable redeployment of employees into positions that the employee has the skills and competence required to perform. If an employer has failed to consult about the potential for redeployment or investigated redeployment opportunities, employees can argue that their redundancy is not genuine. Additionally, if an employee is covered under an applicable modern award, enterprise agreement or s 389 (1) (b) of the FW Act, it may require the employer to conduct consultations with the affected employee prior to implementing the redundancy. Provided that this provision exists, a failure to provide genuine consultation and redeployment may give rise to a successful Unfair Dismissal Claim by the aggrieved employee (Part 3-2 FW Act).
Additionally, pursuant to s351 (1) an employee is protected from ‘adverse action’ taken out against them such as dismissal for reasons including the employees age. A General Protections Claim can be enlivened if the employer has expressed bias in the determination process; such as suggesting that the basis for selecting a particular employee was their age (Part 3-1 FW Act).
Finally, employees who feel that they have been the victim of age discrimination are protected under the Equal Opportunity Act 2010 (Vic). Accordingly, it is unlawful for an employer to discriminate against an employee either directly or indirectly, by terminating his or her employment on the basis of age (s18 of the Equal Opportunity Act 2010 (Vic)). This may provide an employee with a successful claim with the Victorian Equal Opportunity and Human Rights Commission.