I have been made redundant as of last week.I would like to…

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I have been made redundant as of last week.I would like to…

I have been made redundant...

I have been made redundant as of last week.I would like to know if i have received a fair separation package,and bee treated fairly.

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Answered in 1 minute by:

3/31/2014

Solicitor: James D. Ford, Solicitor replied 6 years ago

James D. Ford, Solicitor

Category: Australia Law

Satisfied Customers: 1,601

Experience: Lawyer | Founder & CEO at Blue Ocean Law Group

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Brisbane.Lawyer : Hi, how long did you work for the employer ?

Brisbane.Lawyer : Are you covered by a specific award, employment contract or enterprise agreement ?

Brisbane.Lawyer : Your entitlements vary based on length or service and age.. based on the minimum levels set under the NES - National Employment Standards.

Brisbane.Lawyer : You may be entitled to more.. if your award, contract or enterprise agreement (if any of these apply) provide for this..

Customer:

I was employed for seven and half years.I am 39 y.o.And my employment contract does not state what award i was working under.

Brisbane.Lawyer : Does your employment contract specify anything regarding redundancy payment entitlements, or a minimum period of notice of termination ?

Brisbane.Lawyer : Just to check if an award exists.. what was your job title, and industry ?

Customer:

Foreman/supervisor and forklift operator in a timber yard.

Brisbane.Lawyer : OK.. I will look to see if there is an applicable award..

Brisbane.Lawyer : This award might apply to you... MA000071 - Timber Industry Award 2010

Brisbane.Lawyer : Looking at it now..

Brisbane.Lawyer : I will post into this chat what the award states in terms of redundancy.. which under the NES your rights can change depending upon whether your employer was a small business employing less than 15 employees.. however under the award certain redundancy entitlements are reserved even where the employer is a small business.. Also note the entitlements to job search, etc..

Brisbane.Lawyer : MA000071 - Timber Industry Award 2010Transitional arrangements | Information | History of variations | Reading this award | Download: Current award Current award | Award at 30 June 2010 15. Redundancy[Varied by PR994492, PR503713]15.1 Redundancy pay is provided for in the NES.15.2 Transfer to lower paid dutiesWhere an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.15.3 Employee leaving during notice periodAn employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but is not entitled to payment instead of notice.15.4 Job search entitlement(a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.(c) This entitlement applies instead of clause 14.3.15.5 Transitional provisions – NAPSA employees[15.5 renamed by PR503713 ppc 01Jan11](a) Subject to clause 15.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a notional agreement preserving a State award:[15.5(a)(i) substituted by PR994492 from 01Jan10](i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement-based transitional instrument or enterprise agreement had applied to the employee; and(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.(b) The employee’s entitlement to redundancy pay under the notional agreement preserving a State award is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.(c) This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.(d) Clause 15.5 ceases to operate on 31 December 2014.15.6 Transitional provisions – Division 2B State employees[15.6 inserted by PR503713 ppc 01Jan11](a) Subject to clause 15.6(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a Division 2B State award:(i) that would have applied to the employee immediately prior to 1 January 2011, if the employee had at that time been in their current circumstances of employment and no Division 2B State employment agreement or enterprise agreement had applied to the employee; and(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.(b) The employee’s entitlement to redundancy pay under the Division 2B State award is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.(c) This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.(d) Clause 15.6 ceases to operate on 31 December 2014.15.7 Small employer[15.6 renumbered as 15.7 by PR503713 ppc 01Jan11](a) For the purposes of this clause small employer means an employer to whom the NES does not apply because of the provisions of s.121(1)(b) of the Act.[15.6(b) varied by PR994492 from 01Jan10](b) Despite the terms of s.121(1)(b) of the Act and subject to clause 15.7(c), the remaining provisions of Subdivisions B and C of Division 11 of the NES apply in relation to an employee of a small employer who performs any of the work within the scope of this award which immediately prior to 1 January 2010 was in clause 6 of the Timber and Allied Industries Award 1999, or clause 6 of the Furnishing Industry National Award 2003 except that the amount of redundancy pay to which such an employee is entitled must be calculated in accordance with the following table:Employee’s period of continuous service with the employer on terminationRedundancy pay periodLess than 1 yearNilAt least 1 year but less than 2 years4 weeksAt least 2 years but less than 3 years6 weeksAt least 3 years but less than 4 years7 weeksAt least 4 years and over8 weeks(c) Until 31 December 2014, clause 15.5 prevails over clause 15.7 where the amount of redundancy pay to which an employee is entitled under clause 15.5 and any other instrument exceeds that to which the employee is entitled under clause 15.7.[15.7 renumbered as 15.8 by PR503713 ppc 01Jan11]15.8 Such provisions do not apply to weekly piecework employees.

Brisbane.Lawyer : Please forgive the lack of formatting.. it may be easier to read the above by following this link.. and going to clause 15. of the award...

Brisbane.Lawyer : https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000071/default.htm

Brisbane.Lawyer : How many weeks redundancy pay were you paid ?

Brisbane.Lawyer : Is your employer a small business with less than 15 employees /

Brisbane.Lawyer : Also look in the award under 14. which states what applies in relation to termination notice, etc.

Customer:

Small employer,less than 15 employee's.I will break down the payments for you.

Brisbane.Lawyer : Great..

Brisbane.Lawyer : This is what it says in the award re 14. Termination

Brisbane.Lawyer : 14. Termination of employment14.1 Notice of termination is provided for in the NES.14.2 Notice of termination by an employeeThe notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any moneys due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.14.3 Job search entitlementWhere an employer has given notice of termination to an employee, an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.

Brisbane.Lawyer : 14.4 Transport of employees on termination of employmentWhere means of transport to the bush or bush sawmills is provided by the employer, on the termination of service of an employee, the employee, the employee’s family and goods and chattels will be transported within 48 hours of receipt by the employer of notice that such transport is required, and the employee will be reimbursed the cost of such transport if not provided by the employer. An employee will not be entitled to free transport on a route along which the public is regularly transported for payment, on the other hand the employee will not be charged a rate on such route in excess of that regularly charged to the public.

Customer:

Annual leave + loading,pro rata long service leave,pay in lieu of notice,ex gratia payment.

Brisbane.Lawyer : How may weeks in lieu of notice ?

Brisbane.Lawyer : No redundancy pay ?

Brisbane.Lawyer : Was the ex-gratia payment a redundancy payment ? How many weeks ?

Brisbane.Lawyer : Or was the ex-gratia a bonus or "golden handshake"..

Customer:

It works out to 4.7 weeks.Weekly income $757.Pay in lieu $ 3600.Ex gratia was $1800.There is no redundancy payment mentioned.

Brisbane.Lawyer : I have to leave the chat for a short time.. I will be back shortly to finish the chat..

Customer:

ok,i will still be here.

Brisbane.Lawyer : Based on what the award says.. I think you may be entitled to a redundancy payment even though they are a small business.. though I will need to re-read what the award says before I can confirm.. maybe read it yourself as well.. I send you the link to the award.. look at 15. Redundancy

Brisbane.Lawyer : I will return to the chat soonish.. Cheers, James

Customer:

Thankyou James.

Brisbane.Lawyer :

I am back..

Customer:

hi,how does it look.

Brisbane.Lawyer :

Ok.. it looks good..

Brisbane.Lawyer :

You are entitled to redundancy pay.. if as we believe you are covered by the Timber Industry Award 2010.

Customer:

Ok,what is my next step?

Brisbane.Lawyer :

You are at minimum entitled to the redundancy pay specified in 15.7

Brisbane.Lawyer :

15.7 Small employer

[15.6 renumbered as 15.7 by PR503713 ppc 01Jan11]

(a) For the purposes of this clause small employer means an employer to whom the NES does not apply because of the provisions of s.121(1)(b) of the Act.

[15.6(b) varied by PR994492 from 01Jan10]

(b) Despite the terms of s.121(1)(b) of the Act and subject to clause 15.7(c), the remaining provisions of Subdivisions B and C of Division 11 of the NES apply in relation to an employee of a small employer who performs any of the work within the scope of this award which immediately prior to 1 January 2010 was in clause 6 of the Timber and Allied Industries Award 1999, or clause 6 of the Furnishing Industry National Award 2003 except that the amount of redundancy pay to which such an employee is entitled must be calculated in accordance with the following table:

Employee’s period of continuous service with the employer on termination	Redundancy pay period
Less than 1 year	Nil
At least 1 year but less than 2 years	4 weeks
At least 2 years but less than 3 years	6 weeks
At least 3 years but less than 4 years	7 weeks
At least 4 years and over	8 weeks

(c) Until 31 December 2014, clause 15.5 prevails over clause 15.7 where the amount of redundancy pay to which an employee is entitled under clause 15.5 and any other instrument exceeds that to which the employee is entitled under clause 15.7.

[15.7 renumbered as 15.8 by PR503713 ppc 01Jan11]

Brisbane.Lawyer :

And if you were covered by a NAPSA - notional agreement preserving a State award under clause 15.5 you may be entitled to more.

Customer:

Should i request this from my ex-employer in writing or just give them a call.

Brisbane.Lawyer :

That is.. more than is specified in clause 15.7... if the NAPSA specifies a higher level of redundancy pay.

Brisbane.Lawyer :

Your next step is to take this to you employer and advise them that you think you are covered by the Timber Industry Award 2010.

Brisbane.Lawyer :

Then request them to seek legal advice regarding what redundancy pay they owe you..

Brisbane.Lawyer :

If they come back and tell you that you are not covered by the award.. then ask them to explain exactly why this is the case..

Brisbane.Lawyer :

I assume working in the Timber Industry.. it would be very unlikely you would not be covered by the award that governs that industry.

Customer:

OK.

Brisbane.Lawyer :

You normally have 21 days from the date you were terminated to make a claim to Fair Work..

Brisbane.Lawyer :

You will need to make such a claim if your employer fails to meet the requirements of the award.

Brisbane.Lawyer :

I have not determined whether you might be entitled to a higher level of redundancy.. if you were covered by a NAPSA arrangement from a previous state award..

Brisbane.Lawyer :

The only previous state award for Qld I can find is the Furniture and Allied Trades Award - State 2006

Brisbane.Lawyer :

You may or may not be covered by this previous award... let me know if you think you may have been and we can look into it further..

Customer:

I cannot find anything in my employment records to indicate which award i was being paid under.

Brisbane.Lawyer :

It does not matter.. even if there is nothing in your employment records.. you are likely still covered by the Timber Industry Award..

Brisbane.Lawyer :

If it not something your employer can opt out of..

Customer:

Should i put my claim in writing?

Brisbane.Lawyer :

Yes, and request your employer respond by close of business this Thursday.. and if it is not favourable.. make your claim to Fair Work on Friday this week.

Brisbane.Lawyer :

With regard to the State Award.. which had higher redundancy entitlements.. based on what you have advised it may not apply to you..

Brisbane.Lawyer :

This Award applies in the State of Queensland to employers whose employees are wholly or partially engaged in any aspect of the following industries and/or callings and to those classifications nominated in Part 5.

1.4.1 Manufacture, repair or renovation of furniture and pre-fabricated articles (including all types of floor covering other than ceramic tiles) which are manufactured in such factories (not including sawmills and joinery works).

1.4.2 Preparation, manufacture and repairing of blinds and/or shades.

1.4.3 Manufacture of sporting goods, veneer panels, ladders, toys and small wooden and/or bamboo articles of a similar nature, all types of wooden and/or bamboo articles or articles which are essentially of wooden and/or bamboo construction including boxes, canes etc., used to house or accommodate the following articles: jewels, trinkets, cutlery, sewing machines, transistor sets, record players, recordings, tape recorder sets, photo slides.

1.4.4 Making, manufacture or repair of new or second hand picture frames and art over-mantels.

1.4.5 Makers, repairers, assemblers, tuners and polishers of musical instruments.

Brisbane.Lawyer :

I assume you were not employed to do any of the above... let me know if this is not the case..

Brisbane.Lawyer :

Please let me know if you want further assistance on Friday to make your claim.. I can make an offer to provide additional assistance.

Customer:

picking and packing of lumber and flat packed furniture.

Brisbane.Lawyer :

So would 1.4.1 apply ?

Brisbane.Lawyer :

If it does.. you would be entitled to 11 weeks redundancy pay..

Brisbane.Lawyer :

4.10.6 Severance pay

(a) In addition to the period of notice prescribed for ordinary termination in clause 4.8.2(a), and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in clause 4.10.1(a), shall be entitled to the following amounts of severance pay:

Period of Continuous Service	Severance Pay
(weeks' pay)
Less than 1 year	nil
1 year but not more than 2 years	4
More than 2 years but not more than 3 years	6
More than 3 years but not more than 4 years	7
More than 4 years but not more than 5 years	8
More than 5 years but not more than 6 years	9
More than 6 years but not more than 7 years	10
More than 7 years but not more than 8 years	11
More than 8 years but not more than 9 years	12
More than 9 years but not more than 10 years	13
More than 10 years but not more than 11 years	14
More than 11 years but not more than 12 years	15
More than 12 years	16

(b) "Weeks' Pay" means the ordinary time rate of pay for the employee concerned:

Provided that the following amounts are excluded from the calculation of the ordinary time rate of pay: overtime, penalty rates, disability allowances, shift allowances, special rates, fares and travelling time allowances, bonuses and any other ancillary payments.

Customer:

Not sure,the timber is imported from P.N.G. as with the timber furniture.

Brisbane.Lawyer :

It would appear that the state award requires some level of production or manufacture, or renovation, or repair.. which may not have formed part of your role.. did the business involve the assembly of the furniture ?

Brisbane.Lawyer :

All that is required is.. employees are wholly or partially engaged in any aspect of the following industries and/or callings..

Customer:

i did sometimes assemble furniture for customers from time to time

Brisbane.Lawyer :

Ok.. if this was part of your duties.. then the award might have application.. it is something I think you could push for.. and have an argument about... however, it is not a black and white situation..

Brisbane.Lawyer :

So in summary.. if you are able to argue successfully that the State award applies to you.. then 11 weeks redundancy would be payable.. if not, then even though the business is a small business (due to it being part of the Timber Industry), under the Timber Industry modern Award with 7.5 years service you would be entitled to 8 weeks redundancy pay.

Brisbane.Lawyer :

As to notice payable in lieu..

Brisbane.Lawyer :

As I said above.. make an enquiry to your employer in writing.. requesting a response by COB Thursday this week...

Brisbane.Lawyer :

Sorry.. I lost my place in the chat..

Brisbane.Lawyer :

As to notice payable in lieu..

Brisbane.Lawyer :

If you are covered by the state award..

Brisbane.Lawyer :

4.8.2 Termination by employer

(a) An employer may dismiss an employee only if the employee has been given the following notice:

Period of Continuous Service	Period of notice
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

(b) In addition to the notice in (a) above, employees 45 years old or over and who have completed at least 2 years' continuous service with the employer shall be entitled to an additional week's notice.

Brisbane.Lawyer :

then 4 weeks notice.. and you were paid 4.7 (but I am unsure if this also included your leave entitlements..)

Brisbane.Lawyer :

And under the Timber Industry Award..

Brisbane.Lawyer :

It is as specified by the NES.

Brisbane.Lawyer :

Under the NES if an employer terminates the employment of a permanent employee they must provide at least the following notice:

Period of continuous service	Notice period
Not more than 1 year	1 week
More than 1 year, but not more than 3 years	2 weeks
More than 3 years, but not more than 5 years	3 weeks
More than 5 years	4 weeks

Brisbane.Lawyer :

It is again 4 weeks... so you have been paid the right amount of notice in lieu..

Brisbane.Lawyer :

Please let me know if I can be of further assistance, cheers, James

Customer:

Thankyou once again James.

James D. Ford, Solicitor

Category: Australia Law

Satisfied Customers: 1,601

Experience: Lawyer | Founder & CEO at Blue Ocean Law Group

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