What are employees entitled to if they lose their job during the COVID-19 crisis?
If you have lost your job because of the COVID-19 coronavirus, there are five steps you need to take urgently:
Step 1: Verify the reason why the employment has ended.
This requires checking the reasons provided by the employer. These reasons might be different from the reasons that you consider to be behind the termination of employment, which we can explore below.
Step 2: Check if there is a genuine redundancy.
The coronavirus has forced businesses to close their doors and letting go of staff may seem like the only viable solution. However, there are some employers who are letting go of staff when there is no genuine redundancy.
A genuine redundancy is when:
An employee’s job does not need to be carried out by anyone; and
The employer followed any consultation requirements in the award, enterprise agreement or other registered agreement (where applicable).
A dismissal is not a genuine redundancy if the employer:
Still needs the employee’s job to be done by someone;
Has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement;
Hires someone else to do the job; or
Could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.
Step 3: Check if the dismissal is unfair.
A dismissal may be unfair if:
A redundancy is not genuine;
The dismissal was harsh, unjust or unreasonable; or
If the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.
If you have been unfairly dismissed you may be able to make an application to the Fair Work Commission for reinstatement (getting your job back) or compensation.
Step 4: Check whether you are a casual employee or a permanent employee.
Casual employees are not entitled to redundancy payments, however, permanent employees are.
Quite often our clients think that they are casual employees when, in actual fact, they have been working so regularly and systematically that they are considered to be permanent workers. Someone who has worked for a business regularly and systematically may not be a casual staff member in the eyes of the law.
A casual employee:
has no guaranteed hours of work
usually works irregular hours
doesn't get paid sick or annual leave
can end employment without notice, unless notice is required by a registered agreement, award or employment contract.
Step 5: Check that the right notice and final pay has been given.
If the reasons for the employment ending are lawful, it’s important to ensure that your entitlements have been fully paid.
A notice period is the length of time that an employer has to give to end employment. To end an employee’s employment an employer has to provide written notice of the last day of employment.
An employer can :
let the employee work through their notice period
pay it out to them (also known as pay in lieu of notice), or
give a combination of the two.
An employer has to pay out at least the following minimum redundancy pay.
Period of continuous service:
At least 1 year but less than 2 years - 4 weeks redundancy pay
At least 2 years but less than 3 years - 6 weeks redundancy pay
At least 3 years but less than 4 years - 7 weeks redundancy pay
At least 4 years but less than 5 years - 8 weeks redundancy pay
At least 5 years but less than 6 years - 10 weeks redundancy pay
At least 6 years but less than 7 years - 11 weeks redundancy pay
At least 7 years but less than 8 years - 13 weeks redundancy pay
At least 8 years but less than 9 years - 14 weeks redundancy pay
At least 9 years but less than 10 years - 16 weeks redundancy pay
At least 10 years - 12 weeks redundancy pay
Consult with a Collaery Lawyers solicitor
Employees have to apply to the Fair Work Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal.
If you think you have been unfairly dismissed you need to contact us as soon as possible.