We often ask us whether or not it’s ok to recruit for a role previously made redundant. So, is it?
To be clear, if your business makes a role redundant it should mean that it is no longer required to be performed by anyone. Therefore, in order to be a *genuine* redundancy, businesses should not be re-advertising or re-filling the role unless circumstances have genuinely changed.
The risks
If you advertise a role previously made redundant, you are at risk of facing action by the former employer. This may include unfair dismissal, or misleading or deceptive conduct.
A change of circumstances
There are cases however where, as a business/employer, the circumstances may have genuinely changed. While at the time of the redundancy, the role was no longer required, business conditions have changed and it is required now. So, in this event can you recruit for a role that has previously been made redundant?
There are a number of factors to consider in this situation.
Firstly, an employee has 21 days from the date of termination to lodge an unfair dismissal claim. However, this is not a clear-cut guide. The Fair Work Commission has the authority to accept a claim made after this date. For example, earlier this year they granted an *exceptional circumstance* in the case of Toni Perret v Ayers Real Estate [2020] FWC 2981. In this case, they accepted the employee’s claim of unfair dismissal (non-genuine redundancy) made 15 days after the 21 day period.
Seek advice
If you find yourself in this situation, it pays to seek professional HR or legal advice. Every situation is different. You want to ensure that you act on informed and professional advice taking into account the specifics of your situation and the latest legislation.
Do you need some HR advice about redundancies? Get in touch with our team today.