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I was given notice by my employer before Christmas that I…

I was given notice...

I was given notice by my employer before Christmas that I would be made redundant effective 28 February. They then asked me to stay on until the end of March, to which I agreed, and again asked me to stay on until 30 June, to which I again agreed. They sent me a revised notice of redundancy effective date, payout figure etc. I have now been offered a new job with another organisation, and need to understand whether, by giving 4 weeks notice (though Employment Agreement only specifies 3 weeks) to my existing employer now, will I lose my redundancy payout? Obviously, I would lose the 'payment in lieu of notice' component, by working out my 4 weeks, but I would not want to lose my 8 weeks tax-free redundancy payment - this could affect my decision whether or not to accept the new role.

Lawyer's Assistant: Can you tell me what state this is in? And has this been documented in any way?

I am on a 'common law contract' in Victoria.

Lawyer's Assistant: Has anything been filed or reported?

My 'termination due to redundancy' has been documented via letter in December (for the original 28 February termination date) and again in February for the revised 30 June termination date. No, as I have not received a formal offer from the new employer, nor have I opened negotiations with my existing employer, I have taken no formal actions at this point.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No, thanks. I really just want to understand what legal position I would be in before I open negotiations with my employer on the matter.

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Answered in 5 minutes by:
3/10/2018
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,291
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified

Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today, and ask various questions to narrow the issues in your post raised.

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From the description you have provided there is workplace bullying occurring to you. Part6-4B of the Fair Work Act 2009 (Cth) (FW Act) empowers the Fair Work Commission (FWC) to make orders to stop workplacebullying.Bullying at work occurs where a worker is subjected to repeated unreasonable behaviour by an individual or group of individuals that creates a risk to health and safety: s 789FD(1). The definition of bullying does not include reasonable management action carried out in reasonable manner: s 789FD(2).

An application for stop bullying orders may be made by you under the Fair Work Act.

The Fair Work has discretion to deal with an application as it considers appropriate, including by mediation, conference or hearing. The applicant and alleged bully, as well as the principal(s) or employer(s) of the applicant and alleged bully will be given an opportunity to be heard and put forward their case.

The main point is that you have a legal right to be protected and the law will come to your aid.
Would you like to consider this aspect from the conduct of the employer ?

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as far as providing notice, if you resign, you will not be able to get the redundancy.

you have to let the employer make you redundant for the package to apply.

this part can be tricky, which results in the bullying conduct by the employer to the employee

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Customer reply replied 4 months ago
No, I don't perceive this to be bullying. It was mutually agreed to extend the redundancy date, to the benefit of both parties (though arguably more for my employer's benefit than mine). I agreed to the deferral of the termination date (via email) on the condition that I was free to pursue other opportunities in the meantime (though I should probably have specified that it was also conditional on me receiving the redundancy benefit if I find another role in the interim period).
My role is still technically redundant, but the reduction in headcount/budget for my role that is the cause of my redundancy was deferred until the end of the financial year.

whether your claim of redundancy will stand will depend on the correspondence between you and the employer, which confirms the agreement to pay the redundancy

the issue that you may face, is if there were no set terms of the redundancy, your resignation could trigger the redundancy payment to fail.

have you considered this point ?

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Customer reply replied 4 months ago
I had. The terms of the redundancy were documented in a letter and accompanying email, in both instances. They did not actually withdraw the original redundancy in the second letter. They simply drafted a new version of the redundancy with the revised date. However the email conversations I had with my manager were essentially her asking me if I would consider staying on until the end of the FY instead of leaving on 14 March. I agreed provided I was free to pursue other roles in the interim (but as I said, did not specifically state the condition that I would only extend if the redundancy payment was retained if I was to secure another role before the revised termination date).
I am considering, in the context of the new job and the salary being offered, the risk that I may not receive my redundancy payout, to assess whether I should accept the new role and potentially lose the payout, or wait until another opportunity arises.

you are facing a challenging decisions.

I have extended a special offer to talk on the phone about this important matter, please look, it will help you.

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Customer reply replied 4 months ago
I am expecting to negotiate with my current employer, requesting the redundancy payment stand on the basis that I am only leaving early to take this job because my position has been made redundant (with just the effective date deferred at their request) and seeing what happens. There will always be the risk to them, if they don't agree to a reasonable settlement, that their treatment of me will be 'very bad press' in what is already a fairly toxic work environment culture. Seems like, from your description, that is my only alternative - to appeal to their honour and reputation as an employer.

the fact that your current employer terminated in the second letter that the redundancy is cancelled could result in you losing the payout. There may be an argument of misleading conduct, but further investigation will be required.

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Customer reply replied 4 months ago
OK, thanks. As I said, they didn't actually withdraw, rescind or revoke the original redundancy notification - they simply drafted a new one. But I understand what you are saying. I don't believe it to be misleading, as all discussions were open and in good faith. The only issue is whether I have any sort of legal basis upon which to argue that they are required to pay out the redundancy payment (though obviously not the notice period), which it appears they do not. The rest, then, is down to negotiation.
Thanks for your help in this matter.

you are most welcome

if you need you can take the special call offer and we can talk on the phone if you require.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don't for get to rate me for 5 stars as this supports me helping the community and thank you for using Just Answer.

John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,291
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
John Melis and 87 other Australia Law Specialists are ready to help you
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thank you kindly

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