I have issue with the employer regarding the defining of ordinary hours for the redundancy payment. The GM is ignoring

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Customer: Hi, I have issue with the employer regarding the defining of ordinary hours for the redundancy payment. The GM is ignoring my emails now and the last time he sent me an email to just talk to the Fairwork if I got any problem
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I discussed this with the General Manager
JA: Are you an "at will" employee? Do you belong to a union?
Customer: nope
JA: Anything else you want the Lawyer to know before I connect you?
Customer: So I have been working at Prodive Cairns for more than three years as dive instructor (eight months) and retail assistant(2.5 years). I have the full record of rosters as retail assistant. I have always been rostered 5 days( 8 hours a day) a week as a permanent part time employee. Unfortunately, this was not written down on the EBA. Thus the employer took six months time to calculate the ordinary hours and came to a result of 4.59 days per week. However, I went back to my home country for my granddad and his funeral for almost a month. Ten days were unpaid after I used up all my accrued annual leave then. I believe that this is not fair to calculate my ordinary working days this way. The shop manager ***** *****, Assistant Manager Tim Simroth and all the other retail staff know that I work from Tuesday to Saturday every week. My shift is either from 10:00 to 19:00 or from 11:00 to 20:00. All these are clearly shown in the two and half year rosters which I have a full copy of. I requested to calculate it over a year (4.98 days), the GM did not agree with this. We follow the Enterprise Agreement.
Answered by John Melis in 3 mins 2 years ago
John Melis
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Expert in: Family Law, Legal, Estate Law, Real Estate Law, Criminal Law, Employment Law, Business Law, Consumer Protection Law, Bankruptcy Law, Traffic Law, Personal Injury Law.

John Melis
79040 Satisfied customers
10+ years of experience
John Melis
10+ years of experience

79040 Satisfied customers




31,131 Satisfied customers

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John Melis, Expert

Hi, I’m John Melis, solicitor, and I am in Australia. I want to thank you for taking the time to speak with me today. Your question means a lot to me. If I were in your position, I would feel just as you do. I’m so glad you contacted us about your situation. I will give you a direction to consider moving forward. I know you’ve spent a lot of time on this already. Your patience here has been so important. If I understand you correctly I suggest the following:

Section 119 of the Fair Work Act sets out the entitlement for redundancy pay under the National Employment Standards. A redundancy occurs when an employer no longer requires the job done by the employee to be done by anyone. In that situation, the employee’s position becomes redundant.

Concerning your comments above a genuine redundancy occurs where:

  • The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
  • The employer has complied with any obligation in an applicable modern award, or enterprise agreement to consult about the redundancy.
  • Redeployment of the employee in the business is not possible.

Redundancy pay is an entitlement under the National Employment Standards, for all eligible employees, with employees of small business excluded. Other exceptions outlined in s 121, s 122 and s 123.

On the link, you can work out the actual payment your employer owes you based on your employment agreement:


The calculation of redundancy payment:

At least one year but less than two years - 4 weeks pay

At least two years but less than three years - 6 weeks pay

At least three years but less than four years - 7 weeks pay

At least four years but less than five years - 8 weeks pay

At least five years but less than six years - 10 weeks pay

At least six years but less than seven years - 11 weeks pay

At least seven years but less than eight years - 13 weeks pay

At least eight years but less than nine years - 14 weeks pay

At least nine years but less than ten years - 16 weeks pay

At least ten years - 12 weeks pay.

Employees with less than 12 months service don’t get redundancy pay.

Redundancy pay is at the employee’s base pay rate for their ordinary hours of work.

The notice period the employer is supposed to provide you is:

One year or less - 1 week

More than one year - 3 years - 2 weeks

More than three years - 5 years - 3 weeks

More than five years - 4 weeks

Employees over 45 years old who have worked for the employer for at least two years get an additional 1-week notice.

Some employees don’t get redundancy payments when their job is made redundant.

The following employees don’t get redundancy pay:

1/ employees whose period of continuous service with the employer is less than 12 months

2/ employees employed for:

a stated period

an identified task or project

a particular season

3/ employees terminated because of serious misconduct

4/casual employees

5/ trainees engaged only for the length of the training agreement

6/ apprentices.

There are special arrangements for employees whose employment transfers with a business sale.

I know it isn't easy to deal with issues like this, but you're handling it so well.

I can hear your concern and your voice, and if you follow the steps I've suggested above, it will give you a direction to go.

I know you have a lot of choices, and there are various ways to move forward.

If there is anything else, big or small, that I can help you with today, please let me know?

I am so glad you contacted us, and I thank you for reaching out today.

Don't forget to accept the answer and click five stars in support of the community.

Hi John Thanks for your reply. The problem is the ordinary hours has never been put down clearly on the EBA.

John Melis, Expert

You can raise a claim with the fair work commission to seek compensation.Your satisfaction means everything to us.I thank you for reaching out today, and I look forward to hearing from you soon.
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