A member asked over 7 years ago

Redundancy and alternative employment

Does an offer of alternative employment need to be given, and discussed, before the final day of employment (of a redundant position)?

What if the offer is backdated on the offer of alternative employment letter but was given on a later date? Does the employer have to apply to the Commission for a reduction in redundancy pay, even if the alternative employment is within the same company? Does this need to be done before the finalisation date?

Law Advisor Research Team
Researchers at LawAdvisor

Hi there. When an employee’s position becomes redundant, their employer must provide written notice of the date of termination and comply with the minimum notice period. However, whether an employer chooses to make an offer of acceptable alternative employment, either within the same business or elsewhere, is a matter for each individual redundancy and not a recognised legal requirement in Australia. If an employer does make an offer, this may be expected to occur sometime before the final day of employment for the redundant position. There are no laws regarding the backdating of an offer of alternative employment.

If an employer makes an offer of alternative employment for a position that is within the same business, they can apply to the Fair Work Commission for approval to vary the amount of redundancy pay, potentially to nil, that they are required to pay. The Commission will determine whether the employer is required to provide redundancy pay to the employee based on whether the offer of alternative employment is fair and acceptable. The factors that the Commission will consider include pay, hours of work, location, nature of employment and the employee’s individual circumstances. Importantly, an employee’s refusal of a reasonable redeployment offer may preclude them from being entitled to redundancy pay.

If you are offered acceptable alternative employment, a decision from the Commission about your redundancy pay will need to be reached prior to your final day of employment.

Suggested way forward

You should visit the Fair Work Ombudsman website (www.fairwork.gov.au) for further general information about redundancy. Speaking to an employment lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Answered over 7 years ago   Legal disclaimer

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