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COVID redundancies and general protections claims

29/10/2020

As the Commonwealth government’s Jobkeeper winds down it is widely expected that there will be widespread reductions in workforces and therefore redundancies. This follows on from an initial wave of redundancies at the start of the COVID outbreak which was stemmed by the government’s assistance package.

The first thing employees who are made redundant need to ensure is that they have been paid the appropriate redundancy pay. Employers may seek to avoid this by denying the dismissal is by reason of redundancy, by attempting to redeploy an employee in an unsuitable role, or by imply not making the appropriate payment.

However, assuming the redundancy entitlements are paid, this is not necessarily the end of the road for an aggrieved employee. While the current economic situation may provide a justification for redundancies, it remains illegal to choose a particular employee for redundancy for a prohibited reason.

For example, a large business may determine it needs 2 redundancies in each team and directs a middle manager to make the decision as to who is retrenched. That direction is entirely lawful assuming there are genuine operational needs. However, if that manager then chooses one employee because they are pregnancy and another employee because they are the oldest, then each of those dismissals will be illegal. Often managers use this opportunity to get rid of ‘trouble-makers’ which often means employees who have conveyed genuine grievances, which would also be an illegal motivation.

In these circumstances the most obvious claim is a general protections application which asserts the employee was dismissed for an illegal reason. Prohibited reasons including the exercise of a workplace right such as an employment complaint, union activity, or a discriminatory ground such as injury, age or pregnancy. The claim would not allege that the entire redundancy process was a sham but that the choice of the employee was motivated by illegal reasons.

A general protections application involves a presumption that the action was taken for the illegal reason which forces the employer to justify the decision. In this instance, the employer will be forced to explain why one employee was chosen over another. If the employer cannot explain the choice, or if the explanation is not believed, the employee will be successful.

While it is a reality that employers will be reducing employee numbers and this will involve redundancies, it is important that employers don’t use the reduction in workforce to remove employees for illegal reasons.