QHA_Sep-2020_Online

EMPLOYMENT RELATIONS with Sarah Tilby
COVID-19 AND THE ‘NEW NORMAL’ –
ARE YOU CONSIDERING REDUNDANCIES?
QHA REVIEW | 40
As hospitality venues grapple with the potential
long-term impacts of COVID-19, many employers
may be revaluating their required staffing levels. The
Employment Relations Department has been fielding
many calls from QHA members who are undertaking
structural reviews of their business, particularly in
relation to staffing levels.
If you are considering making one or more positions
in your workplace redundant, it is very important to
follow a process that aligns with the definition of a
genuine redundancy as per section 389 of the Fair
Work Act 2009 (‘FW Act’). Section 389 of the FW Act
is reproduced below:
Section 389 - Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine
redundancy if:
(a) the person’s employer no longer required
the person’s job to be performed by anyone
because of changes in the operational
requirements of the employer’s enterprise; and
(b) the employer has complied with any
obligation in a modern award or enterprise
agreement that applied to the employment to
consult about the redundancy.
(2) A person’s dismissal was not a case of genuine
redundancy if it would have been reasonable in all
the circumstances for the person to be redeployed
within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of
the employer.
The importance of adhering to the definition of a
genuine redundancy as per the FW Act if
considering redundancy of one or more positions,
is for multiple reasons:
1. If the employee (if eligible to do so) makes an
unfair dismissal claim, the employer could have the
grounds to lodge a jurisdictional objection to the
claim. A jurisdictional objection involves an employer
arguing that the Fair Work Commission (‘FWC’)
does not have jurisdiction to deal with the unfair
dismissal claim, or in other words, does not have
the power to deal with the claim. If the FWC finds
that a person’s dismissal was a result of a genuine
redundancy, (note: the FWC needs to be satisfied
with this after considering the submissions of the
employer, so evidence substantiating a claim of
genuine redundancy is important) then the FWC will
have no power to deal with the claim, and the claim
would be dismissed.
2. In addition to reducing the risk of an unfair
dismissal claim, following a process that aligns
with the definition of a genuine redundancy can
also reduce the risk of a general protections or
a discrimination claim. This is because evidence
of a process that is consistent with a genuine
redundancy as defined in section 389 of the FW
Act, can also potentially assist in the rebuttal of a
claim (if made) from a dismissed employee, that they
were dismissed because of:
(a) a workplace right (e.g. right to make a
complaint/enquiry about their employment,
or right to access leave entitlements, etc)
exercised by the employee, or
(b) because of a protected attribute held by
the employee (e.g. gender, race, family/caring
responsibilities, etc).
EVEN THOUGH COVID-19 MAY HAVE HAD A HUGE
IMPACT ON THE OPERATIONS OF MANY EMPLOYERS
IN AUSTRALIA, THE ABILITY FOR A DISMISSED
EMPLOYEE TO LODGE A CLAIM IN RELATION TO THEIR
EMPLOYMENT HAS NOT BEEN AFFECTED.