KEY POINTS:
Just recently my employer told me that business had been tough and that our profits had dropped. My employer said my position needed to be disestablished and that I would be employed under a new job title at a lower salary.
I then received a letter from my
employer telling me that my position had been terminated because it could no longer sustain it. My employer said my position had been terminated by reason of redundancy. The problem is the new job description is almost identical to my original job description and the only change is the job title.
To make things worse, instead of offering me the position my employer has now advertised the new position in the market and has told me that I am welcome to apply if I am interested. I now have no job and strongly believe that I have been treated unfairly. What are my rights?
If the former job description and the new job description are substantially similar, then the redundancy is not genuine because your employer is readvertising the same/similar position. In this situation it is clear that your employer has unjustifiably dismissed you.
An employer must have genuine reasons for making an employee redundant (ie, genuine business reasons) and follow a fair process for making an employee redundant.
I would need to analyse your former job description and the new job description in order to determine whether these are substantially similar for the purpose of determining whether the redundancy is genuine.
If the positions are substantially similar then your employer has definitely breached its obligation to act in good faith in restructuring your position because the reasons for the restructuring are not genuine. In fact, it may be a "sham" redundancy.
Generally the test for whether a new position creates a redundancy is this: would a reasonable person, taking into account the nature, terms and conditions of the new position consider there was sufficient difference between the former role and the alternative role offered by the employer? The answer to this question is often not obvious because it depends on a particular situation. If the alternative role is substantially similar then your employer has not acted fairly and the redundancy would not be genuine.
"Substantially similar" means more than reasonably compatible. A job with the same duties but a different title is likely to be substantially similar. A new job that is the same but with a different focus or emphasis could also be substantially similar.
As to jobs that are not substantially similar, there is no set rule about the amount of difference required for this. Each situation depends on its facts. The nature and extent of each difference is relevant. Some differences are:
Level of responsibilities.
* Change in seniority - is this a demotion?
* Changes to salary and benefits.
* Fewer or more hours of work.
* Different type of employment eg fixed term instead of permanent.
* Reduced leave entitlements or other benefits.
* Reduced/removed redundancy compensation.
* Failure to recognise prior service.
If the difference between the job descriptions is fundamental then the new job description is not "substantially similar" to your old job description. In this situation your redundancy would be genuine. But your employer must still follow a fair process in implementing a redundancy, including consulting you about a proposal to restructure before a final decision is made.
You should check your employment agreement to determine if you are entitled to redundancy compensation. If the redundancy is genuine and your employer does not pay you redundancy compensation then you could bring a personal grievance claim against your employer. Even if you do receive redundancy compensation you could bring a personal grievance claim if you believe your employer did not have proper reason for making you redundant and/or did not follow a fair redundancy process. One remedy you could seek for this is reinstatement. You will need to contact an employment lawyer for assistance.
