Redundancy & ordinary hours of work

[Denise1]

Hi There
My position has been made redundant due to non renewal of a government contract which expires on 30/6/2015. The company is currently
looking at alternative suitable positions for me which is unlikely to occur and I will therefore be entitled to redundancy pay. I have been with the company for just over 8 years and am therefore entitled to 14 weeks pay.
The problem is that due to the nature of the position which covers both busy and not so busy times I work 38 hours per week for 7 months November - May, and 38 hours per fortnight for 5 months June - October, each year. I have done this for 8 years. I am currently full time however will revert to part time hours when the position is redundant.
As you can see this equates to losing 7 weeks redundancy pay!!!
My manager is aware of the issue and has raised it at a higher level. He has suggested a possible compromise of pro rata between full and part time which would equate to approximately 11 weeks pay however I am concerned that this will be rejected.
I understand the rationale of paying redundancy at "ordinary hours of work" under the NES however I do not believe it is fair in my situation.
I have enquired with FairWork who were unable to help and was advised to contact JobWatch which I did and was told it was" a grey area" and suggested I contact the Law Institute for legal advice. I have not as yet taken this step.
Is someone able to advise me or aware of a precedent. Thanks

[Moz]

I couldn't believe it when I first found that this is the way it works under the FWA/NES. It is far too simplistic in my view and open to abuse by unscrupulous employers.

As for precedents, I have only heard of people who have fallen foul of it, having been full time for many years, then gone part time and shortly after been retrenched and their redundancy has been calculated based on their part time hours.

In your case, a pro rated payout seems fair, but there doesn't seem to be any requirement for your employer to agree to that.

[Tiger]

Perhaps I have missed something here?? But where you have a mix of hours worked, then averaging of hours would be the norm (not to mention fair) in terms of calculating the severance weekly rate of pay. Nothing unfair about that in my book. That is perhaps more generous than employer basing the severance calculation on your part time hours which they could reasonably do if you'd currently been working part time for 12 months at time of retrenchment. Be grateful you get 14 weeks of anything, small businesses with less than 15 employees do not have to pay any severance!
It seems however, you are actually not leaving? If so, employer could argue to the FWC that only partial redundance (severance) is applicable in this case.
Tiger

[Denise1]

Thanks for your feedback Moz. I'll have to wait & see how this goes however as I work both full & part time in the course of my employment I hope the company takes this into account.

[Denise1]

Appreciate your comments Tiger.
I'm on a steep learning curve with all this however my understanding is that severance is based on ordinary hours at time of redundancy which will be June 30th and my employer has no obligation to pro rata. I revert to part time on 1st of June so it is purely a matter of timing. For example had the contract expired on May 31st I would still be full time and entitled to severance at full time rate. I assume that the NES/fWA would normally apply to people who change on a permanent basis to either full or part time. I'm hoping that they will appreciate the anomaly and pay accordingly.Fingers crossed! I am of course grateful to be entitled to anything however I'd rather have a job!!! And yes I will be leaving as there will not be a suitable alternative position.

[DebbieR]

Appreciate your comments Tiger.
I'm on a steep learning curve with all this however my understanding is that severance is based on ordinary hours at time of redundancy which will be June 30th and my employer has no obligation to pro rata. I revert to part time on 1st of June so it is purely a matter of timing. For example had the contract expired on May 31st I would still be full time and entitled to severance at full time rate. I assume that the NES/fWA would normally apply to people who change on a permanent basis to either full or part time. I'm hoping that they will appreciate the anomaly and pay accordingly.Fingers crossed! I am of course grateful to be entitled to anything however I'd rather have a job!!! And yes I will be leaving as there will not be a suitable alternative position.

I have the opposite situation. I have a part time contract and in March I was issued with a temporary increase to full time letter to the end of June. Now I'm being made redundant at the end of June but my calculation is done on my part time contract. there is a clause in the temporary increase letter that states the organisation can revert me back to part time due to operational needs, so I would think they should revert me back to part time before they issue the redundancy letter, otherwise I'm full time at the time of the letter. And they don't seem to want me to go back to part time.