Join our

mailing list.

Keep up to date with our latest insights.

  • This field is for validation purposes and should be left unchanged.
Friday Workplace Briefing

When is an Employee Considered Redundant?

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang discuss questions in relation to employee redundancy, and the significant risks created as a result of the moving goal posts of business restructuring.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

Stay updated with our Friday Workplace Briefing

Subscribe to receive the latest Friday Workplace Briefing in your inbox every Friday, where you can hear the critical news and developments that affect your workplace.

Listen to podcast

About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: We’re going to move on to the major topic, which Nina may not be as prepared as me, because I haven’t told her.

Nina Hoang: Literally throwing me under the bus today.

Andrew Douglas: What I wanted to talk to you about is when is an employee redundant? It’s very easy to know when an employee is redundant, when I say, the workplace team, there are four people working there and only three will work there tomorrow. I’m just saying if I do that and say, “All right and as a result of that, somebody’s going to lose their job.” And I’m going to go through a skills matrix, I’m going to determine who I want to keep, okay?

Unquestionably, that triggers a redundancy and that triggers a series of steps that I have to do. So today we’re going to split up in two conversations. One, how do redundancies arise? And secondly, doing what you do? What’s not so obvious is when we are looking at restructuring organisations and we start adding or subtracting from people’s jobs and spreading that around.

So I say to Nina, “Look, you’re a senior associate. You previously supervised two staff. You’re not going to do that anymore. I’m going to allocate the supervision to the new associate coming through and I want you to focus on marketing.” Now, what have I done? I’ve actually substantially changed the nature of the role Nina has done. I haven’t affected her remuneration, I haven’t reflect-

Nina Hoang: Changed my duties.

Andrew Douglas: But I’ve changed your duties, so I’m right on the edge of redundancy, but of course, if what I’m doing is elevating Nina’s role, she’ll never complain about redundancy, but where I do something that takes away a benefit for her future, that is the trigger for redundancy. So if what I say is, “Look, Nina we’ve been bringing in two other senior associates and I’m going to put above all of you special counsel, so you won’t be reporting to me anymore.” And then he goes, “Well, what does that mean?” I said, “Well, you know, the next step up, would be special counsel, it wouldn’t be principal.”

I’ve just curtailed an advantage for Nina in the future and I’ve just made the role she had, her reporting, significant part of it and the capacity for future remuneration, I’ve just reduced it. And people don’t understand when you do that. You are effectively diminishing the nature and scope of the role and you’re triggering a redundancy.

Nina Hoang: Same as when you have it going from part-time or full-time to casual.

Andrew Douglas: Yeah.

Nina Hoang: That’s another one that people forget about that is, although you’re like, “Oh it’s not really changed, the role still exists.” You’re changing a fundamental part of the role and could be disadvantage thing. So it could trigger a redundancy-

Andrew Douglas: Yeah, so anything that creates a disadvantage, whether it’s implicit or actual, so casual’s a great example, when you say to somebody, “Look you’ll actually earn more cash in your hands.”

Nina Hoang: Mm.

Andrew Douglas: And we’re going to pay you a casual rate, it’s actually slightly higher rate too than you got before. I’m removing your capacity gain, personal leave. I’m removing-

Nina Hoang: Security.

Andrew Douglas: Security of job. I’m doing all those things. Even though I paid more, I’ve made your role redundant. Okay, so I just want to raise it-

Nina Hoang: It’s your election.

Andrew Douglas: Yeah.

Nina Hoang: Like give it to employees like that.

Andrew Douglas: I think over the last four or five weeks we’ve had a number of people come to us with reorganisation, restructures and discussions around things. And as they go to do those things, they are taking opportunities away from people, taking benefits. Yes, the person doesn’t lose remuneration. Rem stays the same, but the opportunity to get more does, or the fact they become quarantined into a place they can’t grow from.

Nina Hoang: Yeah.

Andrew Douglas: The nature of the work they’ve had just takes away the things that allow growth within the business. We only want to talk about it shortly, but we want to focus on this issue which says, you know, be careful. Be careful when you are refashioning work that you’re not taking opportunities or benefits away. Even if those benefits will not be realised immediately, that is a redundancy. And that sort of kicks into the second part of as I go to do a restructure. Everybody simply thinks you just set it out, you do your skills matrix to determine who’s in and who’s out, and then you tell people and you get on with life. And it misses two major parts.

One is safety law says, “When we change the manner in which we work, there is an obligation to consult prior to a definite decision being made.” So any restructure is the same as changing plant in manufacturing business. It requires analysis of what it would look like and the discussion around safety. Do the unions or the safety regulators understand that? No, they don’t. And that’s a really lucky thing. And I’m just saying, for unions out there, close your ears. But it is most definitely a consultation. And can I say, when we are doing restructures, we always insert that because what we find is we have much less risk going forward when we do that correctly.

Nina Hoang: Yeah.

Andrew Douglas: And we don’t have the level of industrialisation disputes that occur next. The next part is deciding when you are going to make the decision. Remember, you’re creating all the paperwork, you’re doing all the things that go with it. You’d want to have some of that under privilege, wouldn’t you? As you are focusing on what you want to do, if you decide to notify well after you’ve made that, you’re in breach already.

Nina Hoang: Yeah, ’cause it’s supposed to be as soon as reasonably practical.

Andrew Douglas: Yeah, after a definite decision has been made. So it’s important to focus on that and then the consultation obligation arises when the definite decision has been made to mitigate or revert the impact upon employees. Different thing, not to stop what you’re doing.

Nina Hoang: No.

Andrew Douglas: Remember, and that’s what the union have to say. Well, this is a chance to revisit the restructure. It’s not, it is to minimise the impact on people. So it is, at that stage, a two place consultation, one town hall meeting saying, “This is the definite decision,” followed by individual meetings afterwards to look at how to avert the impact.

Nina Hoang: Yeah. And it has to be genuine consultation. You can’t just go through the motions because that’s often where redundancies fall apart in the Commission.

Andrew Douglas: Yeah. And the worst part is you need to document each stage. So that it expressly states what you’re doing and why you’re doing. Because after those first two meetings, you’ve then got to go back to the third meeting, which is to tell people and then comply with the Fair Work Act around procedural fairness, which includes disclosing at that stage the nature assessment on the skills matrix.

So I just thought we’d map it out. People forget different steps along the way. They forget the dual consultation obligations and they forget you can industrialise it really quickly and it can go terribly wrong. And remember, be careful when you’re doing skills metrics that you don’t overly evolve them to suit your purposes.

Nina Hoang: Yeah.

Andrew Douglas: Because when they’re tested…

Nina Hoang: That’s the objective.

Andrew Douglas: Yeah, so, we did that and then we’re going to jump into the problem. ’cause the problem jumps into that particular issue.

Nina Hoang: Probably, yeah.

Andrew Douglas: Yeah.

Nina Hoang: Angus was one of four leading hands who worked for Tin Drum, a plastic and aluminum packing business at the Coburg site. He was a HSR, taking on the role as he’s also the Union delegate at Coburg, and no one else wanted it. He had only worked at the site for five years, had a poor attendance record, some behavioural issues, and lacked some of the graphics training compared to other leading hands all had lithograph skills.

Andrew Douglas: It’s a very important skill on graphics.

Nina Hoang: I know, I know about it.

Andrew Douglas: Oh, yeah. They’re the aristocrats of labour, honestly. Highest paid people in the whole world.

Nina Hoang: He caused some real problems around the site using safety as an industrial lever. The Coburg site did high volume food and drink container processing including printing. It was mostly automated, but occasionally on the older lines, higher skills were needed. But it was not common. Tin Drum was losing market share from overseas imports since logistics route had opened up following COVID.

It had caused a drop in about 20% production, and they had diversified into packaging dog food not just familiar lines of beer and fruit. They had purchased a high volume fully automated line and had started commissioning. The result was the need for a 30% reduction in head count. And on the 1st of July 2023, the Executive of Tin Drum met to settle the redundancy process.

They were advised by lawyers about the need to call for volunteers first, then proceed to forced redundancies as required. During the meeting, a hit list was prepared of those who they wanted out. It included some employees who were not fit for work on workers’ compensation for more than a year, Angus and some others who were problematic.

On the 20th of July 2023, the AMWU heard rumours and knew the machinery was being commissioned. They put it in a dispute with the Fair Work Commission, note no status quo clause. And two days later, Tin Drum said it made a definite decision, put out expressions of interest for voluntary redundancy and did town hall meetings. The Fair Work Commission was asked to urgently bring on this dispute.

The following day, the AMWU and Tin Drum appeared in the Fair Work Commission. Tin Drum explained a definite decision had only been made yesterday. The AMW said that was inconceivable given the quantity and detail of work, which included reference to a skills matrix for every position. The Fair Work Commission adjourned for a week to allow the process to run as there was no obvious vice had occurred, and accepted Tin Drums’ evidence that definite decision was only made the day before.

When expressions of interest closed four days later, two leading hands had volunteered to take a redundancy. There was only one role open for redundancy. Tin Drum met them individually, explained using skills matrix why they rejected the expression of interest and proceeded to move to forced redundancy.

Andrew Douglas: So can I also explain, you can, during voluntary redundancy somebody puts in an expression which means and say, “No, look, we actually do need to keep your skills and capabilities.”

Nina Hoang: Oh.

Andrew Douglas: Yeah. So that’s why that’s in there.

Nina Hoang: Right.

Andrew Douglas: It’s a legitimate thing to do.

Nina Hoang: Okay. As part of the consultation about force redundancies, they met with Angus and explained how his skills matrix was lower than all other supervisors and inquired why they shouldn’t terminate his employment by way of redundancy. The AMW made an urgent application to the Federal Court to stop his termination alleging breach of the Award and sought limited discovery of all documents, including all emails, texts and messages of the Executive involving a consideration of the restructure.

Andrew Douglas: I think it’s under question. Yeah, I know, but it’s interesting isn’t it? Because I just wonder, I mean, I’ve been to all of these several times. So it is a very familiar structure that I just went through and it’s very often a delegate who’s been terminated that triggers fight in the commission.

So the first question, are there safety law risks for Tin drum? And the answer is yeah, there’s absolutely no consultation as the process that was evolving.

Nina Hoang: Yeah. There was really no consultation at all.

Andrew Douglas: So there is a consultation argument we could see there. Is there any other risks? Well, I’ve got to tell you, there’s a massive safety risk and that is the discrimination argument that could be run under safety law in respect to over HSR.

Nina Hoang: Oh, because of HSR.

Andrew Douglas: HSR.

Nina Hoang: Right.

Andrew Douglas: And because he’d been raising safety concerns. So-

Nina Hoang: But wasn’t he raising like non-legitimate ones?

Andrew Douglas: Well, no, but that’s not his argument. And remember, in the sense of general protection, ’cause it’s like a general protection, it’s reverse onus.

Nina Hoang: Yeah.

Andrew Douglas: It’s under the safety law. It isn’t his role as raising safety issues, not whether they’re legitimate or not.

Nina Hoang: But it has to be that they’ve taken the action because he’s raised those things.

Andrew Douglas: It does, but he would be saying, “I’ve raised these on six occasions. I’ve been treated this way. And the first opportunity to make me redundant, you’ve done it without a proper basis.” It actually is pretty compelling. And it’s not that much different than the Patrick Stevedores case, which was around risk assessments undertaken by a safety professional who’s ultimately terminated. So I put that in there because the discrimination provisions and the safety law more than anything, because everyone forgets it as I did with a workers’ compensation. So terminating someone after a year who’s not fit the inherent requirements, not fit in the foreseeable future with reasonable adjustments is legitimate. Okay?

Nina Hoang: Yeah.

Andrew Douglas: But using a guise to sack someone by way of redundancy, hey it’s done because premium keeps running, so it doesn’t stop premium. But it clearly breaches the same types of discrimination provisions that exist under WASC.

Nina Hoang: And it’s no defence as well. It’s not reasonable management action.

Andrew Douglas: Yeah. So not at all. So can I just show you, I put those things ’cause I want to flush out things that people don’t talk about. And the safety ones, there’s been five or six cases. Patrick Stevedores was under an $80,000 Supreme Court trial, you know, fine with Supreme Court trial. It’s good learning there. Is there any discrimination and general protection risks for Tin Drum?

Nina Hoang: Yeah. The industrial one as well. ‘Cause he was a union delegate and they were targeting him because of that and the complaints that he’s raised.

Andrew Douglas: And the safety concerns.

Nina Hoang: Yeah.

Andrew Douglas: And, you know, there’s other ones for Tin Drum in relation to workers’ compensation and then, you know, workplace rights, all those types of issues, they’re targeting people they don’t like.

Nina Hoang: Yeah.

Andrew Douglas: If there’s any issue which can go to that is a workplace right. They’re going to be successful.

Nina Hoang: Yeah.

Andrew Douglas: Very hard to get around union delegate, HSR, general protections. They would struggle to get around that.

Nina Hoang: Yeah, particularly because they had people who offered to be made redundant and they were like, “No.”

Andrew Douglas: Yeah.

Nina Hoang: Now, we’re going to do forced.

Andrew Douglas: And so the argument’s got-

Nina Hoang: They didn’t consult.

Andrew Douglas: Yeah. The argument’s really got to be that that lithograph expertise was one that was utilised at a much higher level than just once in a life, once in a year type thing to say that that was the blocker. “No, no. We needed him because of these skills.”

Nina Hoang: Yeah.

Andrew Douglas: You need to be able to demonstrate they are regularly practised skills. So that’s one of the industrial risks and the criminal risks for Tin Drum, for members of the Executive.

Nina Hoang: So industrial risks, they’ve not complied with any of the consultation obligations.

Andrew Douglas: Oh, there’s fines, significant fines under the Fair Work Act, breach of awards, breach of those sort of things. So they’re very… But is there any criminal risks that exists?

Nina Hoang: Yeah, that I don’t think so. What is it?

Andrew Douglas: Well, the criminal risks are not easy to find. I think I thought of them at the time and I can’t think of them now, but we’ll come back if there’s a criminal risk. Because what did they do? So they terminated a whole group of people.

Nina Hoang: I don’t think it’s a criminal risk.

Andrew Douglas: Yeah.

Nina Hoang: There’s no wage theft or anything like that.

Andrew Douglas: No. So I don’t think there’s a criminal risk. So there you go.

Nina Hoang: Wow. That was a real wrecker.

Andrew Douglas: Yeah, that was a red herring. That’s one that’s, this is what happens when you do stuff from two in the morning. No criminal risk. Anyway. So there you go. We’ve exhausted all risk.

Nina Hoang: Yeah.

Andrew Douglas: And we’ve also-

Nina Hoang: Even ones that didn’t exist.

Andrew Douglas: Even the ones that didn’t… And we’ve also exhausted 30 minutes.

Nina Hoang: Yeah.

Andrew Douglas: So that means we’re going to say goodbye and-

Nina Hoang: Thank you.

Andrew Douglas: Give us a thumbs up and lovely be back. See you later.

Check this next

In this week’s Friday Workplace Briefing, Andrew Douglas and Kim McLagan discuss how employers can manage employee injuries sustained outside of work. To view the full episode and catch up with the week’s latest news and developments please visit this link.