Can I claim a redundancy if my employer is telling me that my position no longer exists?

There are a number of considerations to take into account in order to determine whether you are entitled to redundancy pay. Your employment is governed by a number of instruments, including your contract of employment, the relevant legislation, Awards and Enterprise Agreements.

First, you will need to determine if you are covered by an Award or Enterprise Agreement for your position and industry. These instruments generally, but not always, outline when you have a claim for redundancy payment.

Second, if you have a contract of employment, you will need to determine whether this entitles you to redundancy pay. If your contract does not contain this clause, you may still make a claim for redundancy pay under the legislation. Alternatively, if your contract does contain a redundancy clause, you may still have a claim under the relevant legislation if your contract does not meet the minimum redundancy entitlements under the law.

Provided that you are not covered by an Award/Enterprise Agreement and you do not have a redundancy clause in your contract, you could still make a claim for redundancy pay under the Fair Work Act 2010 (FWA). To qualify for redundancy payment under the FWA you will need to meet certain conditions. First, your termination must be a case of genuine redundancy, second you must have been employed for 12 months or more and third your employer must not be a ‘small business employer’ meaning that it must employ more than 15 employees. Furthermore, you will not qualify for redundancy pay if you are a casual employee.

What amounts to a ‘genuine redundancy’ depends on a number of factors including whether the employer is able to redeploy the employee and if the redeployment is reasonable. In your situation, one of the key issues to focus on is whether the redeployment is reasonable. A number of factors are taken into account to determine whether redeployment is reasonable including:

• The nature of the position offered;
• The location of this position;
• Your qualifications and skills compared those required for the redeployment opportunity; and
• Whether the new position is a lower-level or lower paid position.

Generally an employer cannot avoid making a redundancy payment if the redeployment requires the employee to accept a lower level or lower paid job. On the other hand, redeployment is not necessarily unreasonable simply because the employee has to relocate to be able to continue working in the new position offered. What makes redeployment unreasonable however is the amount of hardship the employee experiences as a result of relocating and whether or to what extent the employer assists them to do this.

This is a particularly complex area of law and as a result we recommend you seek professional legal advice.