Although an employer has some discretion to select certain employees for redundancy, they must exercise any employer action in such a way that does not break Oregon employment law. The state has laid out certain procedures that must be followed. However, there is also an expectation that the employer will handle this sensitive process in a fair and mature way.
Failure to follow the rules can lead to a successful claim for unfair dismissal. The employment courts tend to focus on the severance procedure rather than the actual outcome. Although redundancy may be harmful and unpleasant for the worker, the courts can only intervene if the wrong procedure was followed.
Coming up With Fair Criteria for Redundancy
First of all, any criteria used should be objective. The employer cannot come up with procedures and then change them just because they have not been able to target the people they want to dismiss. The same applies if the employer changes the rules in order to ensure that an employee that they personally like does not become redundant. This is particularly important for state employees who get special protections.
The courts will look at all the factors surrounding the case. For example, if an employer makes a number of people redundant and then immediately hires some of them back; it could show that the redundancy was only meant to get rid of certain employees. As a rule of thumb, the redundancies are aimed at jobs or posts rather than individuals.
The Need for Consultation
Good redundancies are those that are fully agreed between the employer and employee and follow the terms of the respective employment contracts. The use of coercion, bribes, and retaliation should be avoided. It is important to get the trade unions involved because they represent the interests of the workers. The involvement of the union can also ensure that employers are not subjected to lawsuits for failure to consider the rights of workers. Besides, these trade unions are experienced and can help in a number of ways, including advice on possible retirement plans.
These are some of the mistakes that should be avoided:
- Making part-time jobs and contract jobs the only ones to be lost can be indirectly discriminatory against women and people with disabilities.
- The redundancy should not ignore experience, skills, attendance, and performance when selecting people because the compliant employees may feel that they are being targeted despite their contribution.
- The “last in first out” policy should not be automatically used because it can be discriminatory against younger and newer employees who may feel that they are not being given a fair chance.
- It is generally not a good idea to get rid of employees who can support the growth of the business in favor of those who are friendly to the bosses or the HR team.
- Always pay attention to the unique procedures for collective redundancies if more than 19 employees are being made redundant within a period of three months.
Making a Claim for Unfair Dismissal
If you are an employee who has been made redundant, you can make a claim for unfair dismissal. The first step is to contact HKM Employment Attorneys at 503-389-1130. They will help you gather all the evidence to support your claim within the rules of Oregon employment law.