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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42952
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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My husband was dismissed last week, they have not given m a

Customer Question

My husband was dismissed last week, they have not given him a consultation, they have told him there is a downturn in business but the very next day after his last day added 2 labor hire employees. He is within the 21 day timeframe, should he make an unfair dismissal claim? He is worried they will then bad mouth him and he will not get another job.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

Was he terminated or made redundant?

Customer: replied 1 year ago.
The separation certificate says shortage of work, he was told he will be dismissed due to a downturn in the business but the day after his last day 2 labor hire workers were put on and possibly others being hired this coming Monday
Customer: replied 1 year ago.
He was not given a consultation or opportunity to make suggestions and the company has then put on other people to do his job
Expert:  Leon replied 1 year ago.

Good Afternoon

That points to redundancy and by putting on contractors they can reduce the hours they work

If they are restructuring again it is a redundancy

He has 21 days to bring an action for unfair dismissal if it is not a genuine redundancy.

Unfortunately they do not have to do any consultation.

If he has been with them less than 6 months he has no rights at all.

Customer: replied 1 year ago.
He has been with them almost 3 years, and the code states that a redundancy is not genuine if the same work is completed by anyone, ...would the employment of the new people have to be Full time (same as my husband was) to constitute as not genuine redundancy?
Expert:  Leon replied 1 year ago.

Good Evening

If they employed someone as an employee then the code applies.

But to employ labour hire means they only use them when they need them and they are not in the same position as your husband.

They have to be employees as your husband is and doing the same job and the same hours.

Then it is not a genuine redundancy.

Have they told him what he will be receiving?

Customer: replied 1 year ago.
He will be receiving $1204.14 as final gross payment including leave but not sure he is entitled to a redundancy pay out as it is a business with less than 15 employees?
Customer: replied 1 year ago.
Is he entitled to any redundancy?
Expert:  Leon replied 1 year ago.

Good Morning

He should e paid redundancy

Here is the link that tell him what he should be getting

https://www.fairwork.gov.au/ending-employment/redundancy/redundancy-pay-and-entitlements

6 weeks pay for redudancy

2 weeks notice

plus he is entitled to any unpaid annual leave.

If they say not then he should sue for unfair dismissal.

But from what you have told me it is a redundancy but they may not want to pay correctly.

I hope this makes sense and is of assistance. if there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Expert:  Leon replied 1 year ago.

Are you still in need of assistance?

Expert:  Leon replied 1 year ago.

Good Evening

I hope all is well.

I have not heard back from you and was wondering if I can assist you any further?