August 19

Podcast | Genuine Redundancy

Podcast | Genuine Redundancy

Published 19 August 2019

Welcome to the second instalment of our podcast. Episode 2 discusses genuine redundancy in the unfair dismissal jurisdiction.

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The content of this podcast is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.

Working Knowledge recommends that specialist legal advice should be sought about specific legal issues.

January 21

The untold story of Dick Smith employees

We’ve all heard over the last few weeks of the many Dick Smith customers who have gift cards that are now worthless after the company went into voluntary receivership. Some of these gift cards are said to be worth upwards of $1,000 and whilst it is deeply upsetting for consumers, many of whom are children who received Dick Smith gift cards for Christmas, the impact that this will have on Dick Smith’s employees is far more significant and devastating. Their story has remained relatively untold and little sympathy has been garnered for them, especially when compared to the outpouring of support for disgruntled gift card customers.

Dick Smith employs over 3,300 workers in 393 stores in Australia and New Zealand. Reports are that 12 staff have already been made redundant, with it being highly likely that many more will follow over the next weeks to months as the receivers try to dig Dick Smith out of the deep hole it has found itself in. Most employees are having to rely on media reports for sources of information as to what will happen with their jobs, as information from management is non existent. Further, employees are being threatened that they are not to speak to the press.

This puts employees, almost 50% of whom are engaged on a casual basis, in an extremely difficult position, where they will potentially not only lose their jobs, but also miss out on receiving over $15 million in wages, annual leave and long service leave entitlements. This figure, which has been identified by receivers as the amount owing to current employees, does not even include potential redundancy payments that will be due to employees should they lose their jobs.

Whilst employees’ entitlements will be given preference over those consumers who have now-worthless gift cards, the very real fact of the matter remains that it is going to take a significant amount of time and heartache before employees receive the money from Dick Smith that is due to them, if they receive it at all.

Employees who don’t receive their full entitlements from Dick Smith may have recourse through the Fair Entitlements Guarantee. However, by the time the receivers figure out whether continuing Dick Smith, in whatever form, is viable, and after the employees have gone through the process required under the Guarantee, the very real fact of the matter is that it may be too late for employees. They may have already had to find new jobs, some of which may be far from desirable, sell their houses and say no to their children’s after school activities, all so they can try to make ends meet.

Whilst we can all sympathise with consumers who have lost the value of their gift cards, the far more tragic story to come out of the Dick Smith collapse is the impact it will have on over 3,000 employees. It is disappointing that their plight hasn’t received more media attention and many remain unaware of their precarious position.

So next time a customer is complaining about the unfairness of having irredeemable gift cards, I hope they spare a thought for the unfortunate employees, who are probably having to put up with a barrage of verbal abuse for a situation that is out of their control and which ultimately, will affect them far more greatly.

January 18

Redundancy

A recent decision of the Fair Work Commission regarding redundancy entitlements could have some unfortunate consequences for employees and, in my opinion, in the long term for business and the economy. In Compass Group (Australia) Pty Ltd  v National Union of Workers; United Firefighters’ Union of Australia [2015] FWCFB 8040 the Full Bench of the Commission held that a group of employees on fixed term contracts were not entitled to severance payments even though the employees had been in many case engaged on a series of fixed term contracts for a number of years. The employees all were involved in providing catering and hospitality services to the Department of Defence as part of a contract between Compass Group and the Department.  The employer concerned had a regular practice of terminating the employment of employees when a contract of the employer’s ended. Because of this regular practice the Commission held (and this is probably strictly correct at law) that the terminations were the “ordinary and customary turnover of labour” for that employer and no redundancy benefits were payable.

Under the redundancy provisions in the National Employment Standards redundancy payments are not required when a termination is a result of the “ordinary and customary turnover of labour”.

A direct consequence of this decision is likely to be that that some employers will be encouraged to have high turnover of labour, use fixed term and casual arrangements even more than is currently the case. This will jeopardise an already vulnerable group of employees.

Unfortunately, as managers are often rewarded for short term financial targets with little regard to long term benefits, many managers will be encouraged to embrace this short term cost saving without regard for the long terms interests of any employer in developing a skilled and loyal work force. It also impact the commitment of many the employees (who have no reason to believe a position will continue).

In my opinion the government should consider responding to this decision by amending the National Employment Standards so that only genuinely short term fixed contacts and casual employees (who have received casual loading) are excluded form the right to redundancy payments if their employment ends in circumstances of redundancy.