PDA

View Full Version : Redundant but placed on secondment no end date specified



Uncertainly
01-10-2012, 07:16 PM
Hi,

Would really appreciate some guidance on this: if someone as told they have been made redundant but then placed on secondment for about a year to cover for another employee, would a contract need to be signed for that and would a date need to be confirmed on when secondment is ending?

Also, would the employee have the right to request early termination of secondment, or triggering redployment process prior to the secondment finishing? Would this compromise employee's option foe redeployment or redundancy package?

Greg Schmidt
14-11-2012, 01:42 PM
Hi Uncertainly,

Some recent tribunal decisions have confirmed that an employer cannot unilaterally revoke a Notice of Termination once it is given, but would need the employee's agreement to revoke the termination (and continue the worker in employment). However, my impression is that the situation that you describe is different.

It seems that the situation is more at the "consultation" stage, in that an employee has been told that their substantive position has an uncertain future, but the employee has not been given Notice of Termination. It also seems that the employer is doing what they are supposed to do under Section 389 FW Act - taking reasonable steps to redeploy the person within the business or within the enterprise of an associated entity. A new contract is not required if the employee is still being paid by the same employer, but some employers might provide a letter of transfer/secondment for administrative purposes.

If the employer has a Voluntary Redundancy programme of some kind, then perhaps the employee can request early release from the secondment, and early termination of employment. But if the employee wants to leave at a time when the employer genuinely wants them to fill a role (even a fixed-period secondment) then it's likely to be a simple resignation, without a redundancy package.

Greg

Uncertainly
12-02-2013, 07:23 PM
Thanks for your response Greg, much appreciated.

I had in fact been given notice to my redundancy in feb 2012, but at the same time was requested to temporarily fill a role offered to someone else. This person was expected to return - after a year or less, and at the time of my post another year was possibly required. It is difficult to swallow that the employer genuinely wanted to redeploy me when other equivalent roles had become available which I wasn't consulted to fill. These roles were permanent, unlike the role that I was in which was clearly not secure or ongoing.

At the time that I requested not to continue my secondment, the enterprise agreement current at that time allowed me to end it without losing the redundancy package.

It certainly was a difficult time for me and I learned much during that time. It brings much confusion to be told that you're redundant when year by year I had achieved great performance reviews. And it was a big blow to my self esteem to feel that I had no control of my career direction, of my daily working life, waiting day by day until it was decided that I could go on my merry way. There was no fixed secondment Greg. There were no dates at all, at any time, to tell me how long this secondment was. I felt I couldn't prepare or plan or act on my situation. I have heard through the grapevine that this secondment role may yet again be extended a further year. Who knows, really.

This may seem a tad dramatic, but very real at the time - I felt labelled as unworthy and incompetent, although KPI history would say otherwise. I also felt that was the perception of my coworkers. Maybe I just lost a lot of self confidence.

On a positive note, my career direction has shifted and am on my way to bigger and better things - hopefully :)
The whole situation that I had in that last year or so opened up my eyes to plan further into the future, and to have a better plan B, in case life throws a curveball.

Tiger
13-02-2013, 07:50 AM
'Uncertainly' - you need to remember that redundancy is about removal of a job. So your performance is not the cause; it is just very unfortunate that you are a good performer in a job no longer required by your organization. This happens all the time. Removal of positions and resulting retrenchments of the incumbents is very tough on those incumbents, particularly if it is the first time this has happened to you. People in this situation, tend to take it personally when it is not. Further, a decent employer who has experience in this type of thing will ensure that there is counselling/outplacement available to assist affected employeees transition through the 'grieving' stages.

So hang in there, retain your confidence, it has nothing to do with your performance. Good luck
Tiger

NicoleAnita
13-02-2013, 08:54 AM
Hi Uncertainty

What you describe is outrageous. You should have taken the redundancy (your position WAS made redundant) and left. You then should have challenged that through the Fair Work System. The company clearly did not follow proper procedure in regards to redundancy or best practice for that matter. To make your role redundant and 'seconded' to fill the exact same role? Seems to me the company neither wanted to pay you your redundancy but still wanted to get you to work.

For future reference - the onus is on the Employer to prove that your job (not you) is redundant which means the role no longer exists and can no longer be performed by anyone within the organisation. The employer MUST also consult with those that are affected or may be affected by such redundancies and look at re-deployment options.

The fact they had (and had you perform) a similar role and as you say they were permanent roles means they were basically trying to find a way around the Genuine Redundancy Clause in the Fair Work Act.

Moral of the story - stay clear of dodgy employers!! In the end they only give themselves a bad reputation.