For employees
Was your redundancy genuine? Challenging it, and whether you need a lawyer
Redundancy is the word employers reach for when they want a dismissal to look clean. Sometimes it is exactly that: the role went, the process was followed, the pay was right. Sometimes the same job is advertised a month later. The Fair Work Act sets three conditions for a genuine redundancy, and if any one of them is missing the dismissal can be challenged as unfair. You have 21 days to decide.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Unfair dismissal application if the redundancy was not genuine | 21 days from the dismissal taking effect | Fair Work Act s 394(2) |
| Commission application fee (2026-27) | $92.70, waivable for serious financial hardship | fwc.gov.au/apply-or-lodge/fees-and-costs |
Do you need a lawyer for this?
Advice usually pays for itself when
- The role has been re-advertised or someone else is doing your work, and the employer is a business of any size with HR or legal support.
- You have been handed a deed of release with an extra payment attached and asked to sign within days.
- There was a change of hours or duties dressed up as a redundancy, or you were selected from a group in a way that looks like it targeted you.
The free route is usually enough when
- The business is genuinely closing or shrinking, you were consulted, and your only question is whether the redundancy pay and notice are correct.
- You are a small business employee with under a year's service and the money in dispute is a week or two of pay.
What makes a redundancy genuine under the Act?
Three things, all required. The employer no longer needed your job to be done by anyone because of changes in its operational requirements. The employer complied with any consultation obligations in the modern award or enterprise agreement that covered you. And it would not have been reasonable in the circumstances to redeploy you within the business or an associated entity. If all three are met, the dismissal is a genuine redundancy and an unfair dismissal claim cannot succeed. If any one fails, the redundancy label falls away and the Commission looks at whether the dismissal was harsh, unjust or unreasonable in the ordinary way. That is the whole game: test each condition against what actually happened.
How do I tell whether the job really went?
Ask what happened to the work. A genuine redundancy means the duties are no longer performed by anyone, or have been redistributed so the position itself no longer exists. If a new person was hired into a role with a different title but the same substance, or your work was moved to a contractor doing the same thing on the same site, the condition is doubtful. Job ads are evidence. So are org charts, emails about restructures, and what colleagues were told. An employer is allowed to restructure for cost reasons and to choose which roles go. What it cannot do is call a performance-based or personality-based dismissal a redundancy.
What does consultation require?
Most modern awards and enterprise agreements contain a consultation clause that applies when an employer decides on a major change likely to have significant effects on employees. Typically the employer must tell affected employees about the change, discuss its effects and measures to avoid or reduce them, and consider what the employees say, before the decision is finalised. It does not have to agree with you. It does have to genuinely listen before the outcome is fixed. A meeting that opens with the termination letter already printed is the classic failure. If your award or agreement had a consultation clause and the employer skipped it, the redundancy is not genuine under the Act.
What about redeployment and pay?
Redeployment means a vacant role you could reasonably have done, in the business or an associated entity, that was not offered. Employers are expected to look, and to be able to show they looked. Redundancy pay under the National Employment Standards is separate from whether the redundancy was genuine. You can be owed the correct redundancy pay and still challenge the dismissal, and you can receive a generous package and still find the process was flawed. Small business employers are generally not required to pay redundancy pay under the Standards unless an award or agreement says otherwise. The redundancy pay calculator on this site does that arithmetic.
When does a lawyer pay for itself?
When there is a deed in front of you. Employers often attach an extra payment to a deed of release, and the deed ends your right to claim. Whether the extra money is worth more than the claim you are giving up is a legal question with a number attached. Also when the job has clearly been refilled and the employer has representation, and when your selection out of a group looks like it followed a complaint or a period of leave, which points towards general protections instead. Liquid Employment Lawyers is FairWork Mate's paid legal partner for these matters, a law firm rather than free government help, and they explain scope and fees before you commit.
What is the free route?
The Fair Work Ombudsman on 13 13 94 confirms your redundancy pay and notice entitlements and helps recover unpaid amounts, free. FairWork Mate's redundancy challenge letter tool drafts a request for the employer to explain the operational reason, the consultation and the redeployment search, which is often the fastest way to learn whether a claim has legs. The redundancy pay calculator checks the money. The unfair dismissal checker runs the eligibility gates. All free, all general information rather than legal advice, and FairWork Mate is not affiliated with the Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
Prefer to read about the partnership first? About Liquid Employment Lawyers
Common questions
The employer re-hired for my role two months later. Is that enough?
It is strong evidence that the job was still required, which goes to the first condition. It is not automatically decisive, because operational needs can change, but it shifts the conversation and it is exactly what a challenge letter should raise.
I signed a deed and took the extra payment. Can I still claim?
Usually not. A deed of release generally ends your right to bring the claim it covers. That is why the guide on reviewing a deed sits alongside this one, and why advice before signing matters more than advice after.
Do I still have 21 days if I was paid out in lieu of notice?
Yes. The 21 days run from the day the dismissal took effect, which is usually the date on the termination letter or the last day worked, not the end of the notice period that was paid out. Lodge inside the window regardless.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The free official route is the Fair Work Ombudsman on 13 13 94.
Does a small business have to pay redundancy pay?
Under the National Employment Standards, an employer with fewer than fifteen employees is generally exempt from redundancy pay, though an award or agreement can say otherwise. That is separate from whether the redundancy was genuine for unfair dismissal purposes.
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
Related legal help
21 days to lodge, a $92.70 fee, compensation capped at $95,050. What the Commission looks at, when a lawyer pays for itself, and the free route.
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Making a role redundant: the three legal tests, and where employers get it wrongA redundancy defeats an unfair dismissal claim only if the job truly went, consultation was done and redeployment was considered. The employer checklist.
General protections claim: do you need a lawyer for adverse actionDismissed or punished for complaining, taking leave or a workplace right? 21 days if dismissed, no compensation cap, reverse onus. When advice pays off.