Contesting an Unfair Redundancy in Australia: Know Your Rights

§1Contesting an Unfair Redundancy in Australia: Know Your Rights

§2The Situation: When a "Restructure" Feels Personal

Priya has worked as a marketing coordinator for a mid-sized retail company in Melbourne for six years. In January, her manager tells her the role is being made redundant due to restructuring — but two weeks later she notices the company has advertised an almost identical position titled "Digital Marketing Specialist." Her employer never consulted her during the restructuring process, and she suspects the redundancy was used to push her out rather than eliminate a genuine business need. She received a redundancy payout but is unsure whether it was calculated correctly or whether she can challenge the dismissal altogether.

Situations like Priya's are more common than many employees realise. This guide focuses on the specific question of how you determine whether your redundancy was legally genuine, what your unfair redundancy payout rights actually are, and what concrete steps you can take to push back.

§3What Makes a Redundancy "Genuine" — and What Doesn't

Under the Fair Work Act 2009 (Cth), a redundancy is only genuine if three conditions are all met:

1. 1.The employer no longer required the work to be done by anyone. The job must be truly eliminated — not just the person. If your tasks are redistributed to existing staff or a substantially similar role is advertised, this criterion may not be satisfied.

1. 1.The employer complied with any obligation to consult. Many modern awards and enterprise agreements require employers to genuinely consult affected employees before finalising a decision to make roles redundant. Consultation must be meaningful — not a formality after the decision has already been made.

1. 1.Redeployment was not reasonably practicable. The employer must have considered whether you could be redeployed into a suitable vacancy within the business or an associated entity. If a suitable role existed and was not offered, the genuine redundancy defence may fall away.

If any one of these three elements is absent, your employer cannot rely on the genuine redundancy exclusion to block an unfair dismissal claim. That is the central mechanism most employees overlook.

§4Key distinction: redundancy vs retrenchment vs sham redundancy

§5Your Redundancy Payout Rights: What You Are Owed

Even in a genuine redundancy, you are entitled to minimum payments under the National Employment Standards (NES). These apply to most permanent (full-time and part-time) employees covered by the national workplace system.

§6Redundancy pay scale under the NES (minimum):

Note that the figure drops at 10 years because long-service leave entitlements (which accrue separately) are taken into account under the NES framework.

Your redundancy pay is calculated on your base rate of pay — not ordinary time earnings, loadings or allowances, unless your contract, enterprise agreement or modern award says otherwise. Always check those instruments, because they may be more generous than the NES minimums.

Small business exception: If your employer has fewer than 15 employees (counted at the time of dismissal), no redundancy pay is required under the NES — though a contract may still provide for it.

Casual employees are generally not entitled to NES redundancy pay. However, they retain rights under general protections provisions and, in some circumstances, may argue regular and systematic engagement gives rise to other entitlements.

§7Step-by-Step: How to Challenge a Sham Redundancy

Step 1 — Gather your evidence immediately

Collect your termination letter, employment contract, any applicable enterprise agreement or modern award, payslips, and any written communication about the redundancy or restructure. Screenshot any internal job advertisements for roles similar to yours.

Step 2 — Lodge an unfair dismissal application with the Fair Work Commission

The deadline is 21 calendar days from the date your dismissal takes effect. This is a strict cut-off; late applications require proof of exceptional circumstances and are rarely granted. Lodge online at the Fair Work Commission website (fwc.gov.au) using Form F2.

The filing fee is $82.90 (confirm current amount with the Fair Work Commission, as fees are indexed periodically). Fee waivers are available for genuine financial hardship.

Step 3 — Attend conciliation

Most unfair dismissal matters are referred to a private telephone conciliation within a few weeks of lodgement. A Fair Work Commission conciliator assists both parties to explore settlement. No formal hearing occurs at this stage; parties speak candidly without admissions being used against them later. Around 70–80% of unfair dismissal applications resolve at conciliation.

Step 4 — Proceed to a formal hearing if conciliation fails

If conciliation does not resolve the matter, a Commission Member will conduct a hearing. Both parties may present evidence and submissions. You may represent yourself or engage a solicitor or union representative.

Step 5 — Consider a general protections claim as an alternative or additional avenue

If your redundancy was connected to a workplace right (for example, you recently made a complaint, took parental leave, or engaged in union activity), you may also have a general protections claim under the Fair Work Act 2009. The time limit here is 21 days from dismissal. General protections claims do not require you to have served a minimum employment period, unlike unfair dismissal claims (which generally require 12 months' service with a small business employer or 6 months with any other employer).

Typical duration: Conciliation usually occurs within 4–6 weeks of lodgement. If a hearing is required, resolution can take several months to over a year.

§8Common Mistakes That Undermine a Redundancy Challenge

Missing the 21-day deadline. This is the most frequent and fatal error. Employees often wait to see whether their employer will "do the right thing" or while they seek advice — and the window closes. Lodge first, seek advice concurrently if needed.

Accepting the payout without understanding what it covers. Signing a deed of release in exchange for a redundancy payment may extinguish your right to bring further claims. Read any settlement document carefully before signing, ideally with legal advice.

Assuming the redundancy must be genuine because the employer said so. An employer's characterisation of a termination as a redundancy is not determinative. The Fair Work Commission looks at the substance of what occurred.

Overlooking consultation obligations. Many employees do not know that their award or enterprise agreement requires genuine prior consultation. Failure to raise this in an application is a missed opportunity.

Confusing redundancy pay with notice pay. These are separate entitlements. Even if you received a redundancy payout, you may also be owed payment in lieu of notice, accrued annual leave on termination, and long service leave depending on your jurisdiction and length of service.

Not checking for redeployment opportunities. If a suitable vacancy existed within a related entity at the time of your redundancy and your employer did not genuinely consider placing you in it, this is a basis to contest the genuine redundancy finding. Ask your employer in writing what vacancies were considered.

§9Relevant Law

The primary legislation governing redundancy in Australia is the Fair Work Act 2009 (Cth). It sets out the genuine redundancy definition (which requires absence of the work, compliance with consultation obligations, and consideration of redeployment), the National Employment Standards (which prescribe minimum redundancy pay scales), and the unfair dismissal and general protections frameworks. State and territory public sector employees are generally covered by state legislation rather than the federal scheme — confirm the applicable framework with the relevant agency in your jurisdiction.

Modern awards and enterprise agreements registered under the Fair Work Act 2009 frequently contain additional redundancy and consultation obligations. The Fair Work Regulations 2009 prescribe procedural matters including application forms and fee structures.

§10Real Cases: Issues That Have Arisen

The cases provided as sources for this article concern New South Wales Supreme Court matters in areas of discrimination, contract and corporate law — none of which directly address unfair redundancy payout rights under the Fair Work framework. As a result, no specific case citations are provided in this section.

What Fair Work Commission decisions consistently show (as a matter of general principle, without citing specific case numbers not provided here) is that:

• Employers who re-advertise substantially similar roles shortly after a redundancy face serious scrutiny about whether the work was genuinely no longer required.
• A failure to meet consultation obligations under an enterprise agreement or modern award has been treated as defeating a genuine redundancy defence.
• The Commission examines both whether redeployment was considered and whether it was genuinely practicable — not simply whether it was formally offered or refused.

If you would like to research specific Fair Work Commission decisions, the Commission's publicly searchable database at fwc.gov.au contains thousands of unfair dismissal decisions.

§11Checklist: Before You Act on a Redundancy

• [ ] Received written notice of redundancy and understand the stated reason
• [ ] Identified whether your employer is covered by the national Fair Work system or a state system
• [ ] Checked your length of service to confirm eligibility for unfair dismissal (6 months / 12 months for small business)
• [ ] Reviewed your contract, enterprise agreement and modern award for consultation and severance provisions
• [ ] Verified your redundancy payout calculation against the NES minimum scale
• [ ] Documented any evidence that the role or similar work has continued after your dismissal
• [ ] Noted the date your dismissal takes effect and counted forward 21 days
• [ ] Considered whether any workplace right you exercised preceded the redundancy decision (general protections angle)
• [ ] Sought advice before signing any deed of release or settlement document
• [ ] Lodged Form F2 with the Fair Work Commission before the 21-day deadline (or sought an extension urgently if the deadline has passed)

§12Get a Free Head Start on Your Matter

ROY's free AI matter analysis can help you map out the key issues in your situation before you speak to a solicitor — start there to clarify your position quickly.

Disclaimer: This article provides general legal information about Australian law and is not legal advice. Laws vary by state and territory, and individual circumstances differ. You should consult a qualified Australian solicitor for advice specific to your situation.