Redundancy and termination lawyers in Melbourne

What is a genuine redundancy? 

Under the Fair Work Act 2009 (Cth), a genuine redundancy occurs when an employer no longer requires an employee’s job to be performed by anyone due to operational changes, and has complied with relevant consultation obligations under any applicable award or enterprise agreement. A redundancy will not be considered genuine if the employer has failed to consult or could have reasonably redeployed the employee to another role within the business or an associated entity.

To ensure a termination is lawful under the Fair Work Act 2009 (Cth), employers must follow a fair and legally compliant process. This includes:

• Having a valid reason for termination – such as poor performance, misconduct, or redundancy. The reason must be based on facts and not be harsh, unjust, or unreasonable.

• Following a fair process – this generally involves providing the employee with notice of concerns, giving them an opportunity to respond, and genuinely considering their response before making a decision.

• Meeting minimum notice and entitlements – employers must provide written notice of termination (or payment in lieu), and pay out any owed entitlements such as accrued leave.

• Complying with awards and enterprise agreements – these often include additional consultation or procedural requirements, especially for redundancy.

• Avoiding unlawful reasons for dismissal – such as discrimination, temporary absence due to illness or injury, or exercising a workplace right. These may give rise to general protections claims.

It’s also essential to keep thorough records of all steps taken. Seeking legal advice before terminating employment can help reduce the risk of claims and ensure full compliance with Australian workplace laws.

In Australia, employees who are made redundant may be entitled to several payments and benefits under the Fair Work Act 2009 (Cth), depending on their length of service, award, enterprise agreement, and employment contract. Entitlements typically include:

• Redundancy pay: Calculated based on the employee’s continuous service with the employer (excluding casuals), ranging from 4 to 16 weeks’ pay depending on how long they’ve been employed.

• Notice of termination (or payment in lieu): The required notice period varies from 1 to 5 weeks based on the employee’s service and age.

• Accrued but unused leave entitlements: Including annual leave, long service leave (where applicable), and any other entitlements under an award or agreement.

• Other contractual or award-based entitlements: Such as additional redundancy provisions outlined in an enterprise agreement, modern award, or company policy. Certain small businesses (with fewer than 15 employees) may be exempt from paying redundancy pay, but other obligations still apply. We help employers assess eligibility, calculate entitlements accurately, and ensure legal compliance throughout the process.

A lawful restructure requires careful planning and legal compliance. Employers must identify the legitimate business reasons for the restructure, assess the impact on staff, and consult with affected employees in accordance with any applicable award or agreement. Redundancy decisions must be based on the role—not the individual—and consideration must be given to possible redeployment. Employers must also calculate and pay correct redundancy entitlements, which can vary based on length of service and award or enterprise agreement terms.

If a termination is not handled properly, an employee may lodge an unfair dismissal claim or a general protections claim, which can lead to compensation orders, penalties, or reinstatement. There are also risks to team morale, reputation, and workplace culture. Employers may also breach contract or award obligations, resulting in costly legal disputes.

Redundancy pay under the National Employment Standards ranges from 4 weeks (at least 1 year of service) up to 16 weeks (at least 9 years), based on continuous service. Casuals are generally excluded, and small businesses with fewer than 15 employees may be exempt. Awards, agreements, and contracts can provide more.

Yes. Most modern awards and enterprise agreements require genuine consultation about major workplace change, including discussing the change and considering redeployment, before a redundancy takes effect. Skipping consultation is the most common reason a redundancy is found not to be genuine.