Previously, we have considered the necessary steps in planning a restructure and consultation. Once you have gone through those processes, the next step is identifying the employees who hold the roles which are excess to requirements and therefore redundant.
Determining the criteria for selecting employees for redundancy may be difficult particularly where, for example, two positions are excess to requirements for a role which has well in excess of the two positions which are redundant. To give you an example, an employee has 10 people who are employed as cleaners, two of the 10 positions are redundant, selecting the employees for redundancy in these circumstances is something which must be done with consideration and care. Employers need to establish a fair and rationally base for the selection criteria, to avoid claims of unfair dismissal, discrimination or adverse action.
It is important to adopt a clear and transparent criteria for selection for redundancy, to ensure that the selection decisions are not tainted by subjective factors that might lead to a determination that the process involved was designed to achieve a pre-determined result.
What a clear and transparent criteria for selection looks like for each individual business and for each restructure will be different, however having undertaken a thorough and well thought out planning and consultation process will assist in the selection process.
By way of case example, in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, Justice Gray found that a Professor who had been selected for redundancy on the basis of alleged financial imperatives had, in fact, been targeted for other reasons and that the University had taken adverse action against the Professor. The result was that the Court ordered the reinstatement of the Professor. The Judge decided that reinstatement was appropriate because compensation that would otherwise have been awarded for a breach of adverse action provisions would have been significantly in excess of one million dollars and potentially up to two million dollars.
We will address redeployment in future articles.
Should you have any questions about selection for redundancy, or redundancies in general, please feel free to contact us.
Written by Nicole Dunn and Kate Gibson
Disclaimer: This publication has been provided for general guidance only and does not constitute professional legal advice. You should obtain professional legal advice before acting on information contained in this article.