Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.
When is Redundancy Pay NOT Payable?
Redundancy pay is generally notpayable under the National Employment Standards (‘the NES’) to any of the following:
an employee whose period of continuous service with the employer is less than 12 months;
an employee of a small business employer (a small business employer, for the purpose of determining redundancy pay under the NES, is an employer who employs fewer than 15 employees – this is based on a simple head count of employees immediately before the relevant person was terminated, or at the time when the person was given notice of termination (whichever happened first));
an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
an employee whose employment is terminated because of serious misconduct;
a casual employee;
an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
an employee to whom a industry-specific redundancy scheme in a modern award applies;
an employee to whom a redundancy scheme in an enterprise agreement applies if both:
the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation
the employee is covered by the industry-specific redundancy scheme in the modern award.
A modern award, or enterprise agreement which incorporates modern award redundancy provisions, may provide that an employee will not get redundancy pay if their employer finds other suitable/alternative employment.
The NES also allow Fair Work Australia to reduce an employee’s redundancy pay on application by an employer, if the employer either:
finds other acceptable employment for the employee; or
is unable to pay the full redundancy pay entitlement.