Tag archives: redundancy

Caution for employers: redundancy entitlement when employer changes employment conditions and employee continues working for their employer

The Federal Court of Australia (FCA) recently considered this issue in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867,[1] holding that an employee who was required to transfer her full-time employment to part-time was entitled to redundancy pay, because the employer no longer required the full-time job to be performed by anyone.

Facts

On 1 May 2014, Broadlex Services Pty Ltd (Employer) hired Ms Brizitka Vrtkovski (Employee) as a full-time cleaner.

On 15 August 2017 the Employer informed the Employee that “due to consideration of work flow an Continue Reading

Comment faire face au Coronavirus en France?

Depuis le mois de janvier 2020, l’épidémie de Coronavirus COVID-19 s’est rapidement propagée à travers le monde, causant des milliers de décès.

Le Gouvernement français a réagi en plusieurs temps : après avoir émis des recommandations en matière de gestes barrière, il a ensuite pris la décision de fermer écoles et établissements accueillant des enfants, puis plus récemment a été ordonné le confinement généralisé de la population française et la fermeture de nombreux établissements jugés non indispensables, afin d’assurer la santé publique. Les dernières recommandations du Gouvernement pour les employeurs peuvent être consultées ici.

Dès lors, pour les entreprises ayant … Continue Reading

Good Work Plan: Government issues further response and consultation to support families and pregnant women

As part of its Good Work Plan, the UK Government has recently published a response and a consultation paper on proposals which will protect and support families and pregnant women. The first Government paper considers extending redundancy protection for women and new parents.  The second consultation looks at various proposals to support families, including a review of the various parental leaves and pay entitlements, neo-natal leave and pay and providing transparency of employer’s work-life balance policies.

Good Work Plan: Pregnancy and Maternity Discrimination Consultation

As part of the Good Work Plan, the Government has considered changes to assist pregnant women … Continue Reading

The beginning of a revolution (by the French lower courts) ?

French President Emmanuel Macron implemented a significant reform of the French employment code in late 2017, with the intention of providing employers greater flexibility and predictability in managing labour relations.

One of the most controversial measures was the creation of a grid applicable to the amount of indemnities due to employees for unfair dismissal, setting minima and maxima as a function of the length of service of the employee and the headcount of the employing entity.

Prior to the adoption of the grid, courts were free to determine the amount of damages payable to unfairly dismissed employees based on the … Continue Reading

23 redundancies with no consultation? Federal Court says ‘that’s OK’

An employer decides to abolish 23 full-time positions due to a lack of funding.  Surely this is a major change likely to have a significant effect on employees which obliges the employer to consult with those employees as per the consultation term in their enterprise agreement?

While many would say ‘yes, of course’, the Federal Court in Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246 recently found the answer to be a clear ‘no’ and, accordingly, there was no requirement for the employer to consult.… Continue Reading

French employment code reform: Focus on economic dismissals

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our third article on the amendments relating to economic … Continue Reading

Significant changes to French employment code to enter into force no later than January 1st, 2018

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform – numbering 159 pages and providing for 36 measures – are already in force.

The amendments to existing legislation effected by the Ordinances are built around the following principles defined by the French Government:

  • giving precedence to micro-businesses (TPE) and to small and medium-sized companies (PME);
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What is the latest on employees’ rights in the event of redundancy in Germany?

In business, the restructuring of a company (such as by the closure of an individual business unit or a necessary reduction in the number of staff) may result in an employee’s redundancy. However, dismissing an employee by reason of redundancy has strict prerequisites under German law.

The main requirements which must be observed under German law for a dismissal based on redundancy are as follows:

  • In business units with more than ten employees (more than five if hired before 31 December 2003), and if an employee has been at the company for more than six months, a specific justification for
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The (latest) reform of the French employment code is ongoing

As part of candidate Emmanuel Macron’s program during the Presidential elections campaign, a substantial reform of the French employment Code was promised. After his election as President, French commentators anticipated new changes would be implemented quickly, given Emmanuel Macron’s indications that he wished to go ahead as soon as possible, without too much debate before the French Parliament.

This reform is now on track, and will be implemented through a specific procedure:

  • an “enabling” law (loi d’habilitation) shall be voted by Parliament to set a specific framework for the reform;
  • ordinances (ordonnances) will be published after
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Protected species? Considering rights associated with pregnancy and parental leave in the event of redundancy

When an organisation is considering making redundancies, it is important to consider whether employees who are pregnant or on parental leave are afforded any special protections under Australian law.

Both the Fair Work Act 2009 and anti-discrimination legislation include provisions particularly relating to pregnancy and parental leave, including the right to return to the same or a similar position.  The fact that declaring a position redundant may result in the termination of an individual’s employment means consideration must be had to whether the termination employee’s employment is in fact lawful, even if there are genuine grounds for making a position … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in Germany?

This post was also contributed by Tony Rau, Trainee, Norton Rose Fulbright LLP (Munich).

German law provides for extensive protection of pregnant employees and employees on leave in connection with pregnancy. Regarding the latter, German law distinguishes between maternity leave (i.e. 6 weeks before until 8 weeks after childbirth – or 6 weeks before until 12 weeks after childbirth in certain cases) and parental leave (i.e. longer periods of leave granted after childbirth in order to care for newborns or children). The relevant rules are primarily aimed at protection against dismissal, but also protect against, for example, certain working conditions … Continue Reading

Do employees who are pregnant or on maternity leave enjoy any special protection in the event of redundancy in France?

As is the case in many other countries (particularly countries in the European Union, which are covered by EU Directive 92/85/CEE dated 19 October 1992), France has implemented a full set of rules with the goal of protecting pregnant employees or employees on maternity leave against illegitimate termination of their employment contract. These protections also apply in the context of redundancies.

The rules run to the benefit of all female employees, whether employed on a full time or part time basis, including both those on an indefinite term and fixed term employment contracts. However, application of the protective provisions to … Continue Reading

Do employees who are pregnant or on maternity leave enjoy special protection on redundancy?

It is not unlawful in itself to make an employee redundant who is pregnant or on maternity leave. This means that, subject to the special protection enjoyed in respect of alternative employment referred to below, the fairness and lawfulness of the redundancy dismissal will be determined in the same way as other redundancy dismissals. So, as long as redundancy is the real reason for dismissal, the dismissal is carried out fairly and the rules on alternative employment are followed, there will be no liability for unfair dismissal.

However, if the selection of the employee for redundancy is because she is … Continue Reading

What is the latest on employees’ rights in the event of redundancy in France?

Dismissing an employee due to economic difficulties is extremely delicate in France. A law dated 8th August 2016 has specified the definition of the economic grounds for dismissals, providing that economic difficulties are, in particular, characterized by a significant evolution of an indicator such as a significant drop of turnover, a significant drop in purchase orders, operating losses, worsening of cash flow or gross operating profit or any other elements which can evidence such economic difficulties.

Case law imposes a very strong obligation on employers before envisaging any redundancy and the main applicable principles regarding employees’ individual rights have not … Continue Reading

The necessity of adopting a sensitive consultation process in the event of redundancy

This post was contributed by Jahan Meeran, Trainee Solicitor, Norton Rose Fulbright LLP, London

A recent decision of the Employment Appeal Tribunal (EAT) illustrates the pitfalls of not adopting a sensitive consultation process in the event of redundancy..

In the case, the claimant had been employed by the property management division of his employer for over 40 years. Following a strategic review, the company decided to reduce the number of director roles. On 6 January 2014, the claimant was put on garden leave and placed into a redundancy pool comprising only himself. On 8 January a letter was sent to … Continue Reading

Genuine Redundancy and Redeployment – Job Swapping Reasonable in All the Circumstances?

In the recent case of Skinner et al v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574 the Full Bench found that an employer breached its obligation to explore redeployment options under s.389(2) of the Fair Work Act 2009 after making 7 of its employees redundant without properly considering job swaps and voluntary redundancies with other employees.  These 7 employees who had previously had their unfair dismissal applications dismissed, consequently had their applications remitted for re-hearing.… Continue Reading

Italy’s Supreme Court confirms that dismissals for redundancy to increase profits are legal

In a decision dated December 7, 2016, Italy’s Supreme Court – the Corte di Cassazione – confirmed that the dismissal of an individual employee for redundancy can be legally grounded solely on business-related reasons, such as improving the company’s competitiveness, reducing costs, or increasing profits. The decision was based on the constitutional principle of “freedom of private enterprise.”… Continue Reading

Obtaining alternative employment and redundancy pay: Does the offer meet the test of acceptability?

If an employee is entitled to redundancy pay on termination, but their employer has obtained other acceptable employment for them, the employer can apply to the Fair Work Commission (FWC) for an order under the Fair Work Act 2009 (Cth) (FW Act) to reduce (including to nil) the amount of redundancy pay that is due to the employee.

The employer is required to demonstrate that:

  • it “obtained” the alternative employment for employees; and
  • the alternative employment was “acceptable”.

In the recent decision of Sodexo Australia Pty Ltd T/A Sodexo [2016] FWC 4012, Deputy President Sams of … Continue Reading

Do you need to pay redundancy when you lose a client contract?

Section 119(1)(a) of the Fair Work Act 2009 (Cth) states that an employee is entitled to be paid redundancy pay by the employer  if the employment is terminated at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour (the Exception).

The Exception was most recently considered by a Full Bench of the Fair Work Commission in December 2015 in Compass Group (Australia) Pty Ltd v National Union of Workers and another [2015] FWCFB8040 (CompassContinue Reading

ECJ decision on Collective Redundancy.

The ECJ has delivered its decision in a case based on the interpretation of collective redundancies and how to determine the term “establishment”. It has held that the UK legislation does correctly implement the EU directive on collective redundancies and therefore that the term “establishment” must be interpreted as referring to the entity to which the workers made redundant are assigned to carry out their duties and not to the employer’s business as a whole.

In the UK an employer proposing to make collective redundancies is required to inform and consult with appointed representatives of the affected employees. The obligation … Continue Reading

Economic dismissal : conditional reclassification offers lead to unfair dismissal

The legal background

In the context of an economic dismissal, even when the employer claims to have strong economic grounds for justifying the termination of the employment contracts, it is still required to comply with the general reclassification obligation applicable to all economic dismissal procedures.

Such obligation consists in trying to seek alternative positions to be proposed to the employees whose dismissal is contemplated prior to the notification of the dismissal and must be conducted both at the company and group level. In addition, the positions offered as part of the reclassification obligation must be formalised in writing, and be … Continue Reading

Full Bench rules on the meaning of “redundancy” in an enterprise agreement

Employers may have granted entitlements to redundancy pay through enterprise agreements in wider situations than provided by the National Employment Standards (NES). The Full Bench of the Fair Work Commission has ruled that the entitlement to redundancy pay in an enterprise agreement should not be ‘read down’ to exclude the ‘ordinary and customary turnover of labour’ concept, which can be found in the redundancy provisions of the NES.… Continue Reading

Obligations of the employers in Colombia regarding collective consultation on redundancy

In Colombia, companies are not obliged to request authorization from the unions to carry out downsizing processes.

However, it is advisable to review if the collective bargaining agreements entered into with the unions include any obligation in this regard.

According to Colombian labor law, redundancy, economic reasons and the fact that a role is no longer required by the employer will be construed as unilateral terminations without cause giving rise to the payment of a legal indemnity according to rules that depend on the type of labor contract and the length of service.

However, Article 67 of Law 50 of … Continue Reading

Collective consultation on redundancy – what obligations do employers have?

In the province of Québec, the concept of “redundancy” shall be understood as terminations of employment or layoffs (individual or collective), all as stated in and within the meaning of section 82 and following of the Act Respecting Labour Standards (the ALS).[1] That being said, employers have no formal and legal obligations with regards to collective consultations on redundancy.

Indeed, and in non-unionized workplaces, employers are under no obligation with regards to employment termination or layoff preliminary procedure or consultation other than to give the individual or collective notice pursuant to the ALS (the distinction between the individual … Continue Reading

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