Another theory says don’t shed staff on a Friday – do it on a Monday so the victims have a full week to find another job.

Modern redundancy has nothing to with timing, and everything to do with procedure. The legal landscape around this has changed considerably since the provisions of the Fair Work Act (2009) became law on 1 January 2010. Make no mistake, in the eyes of the law the balance is firmly tipped in the employee’s favour.

Anna Ford, associate at Sydney law firm Coleman Greig, says a redundancy isn’t genuine without the following three elements.

(1) Under all modern awards and enterprise bargaining agreements, the employer must explain why any employee is being made redundant – they have to explain their own weakened financial position, even at the risk of compromising their business.

(2) An employer cannot re-fill a position that has been made redundant. If an employee discovers a replacement is doing his or her job after a redundancy is announced, the decision can be challenged.

(3) Redeployment. If no genuine attempt is made to redeploy staff prior to redundancies, the decision is likely to be contested.

“When employers ask me to handle redundancy cases, I always go through these three points with them,” says Ford. “If they can’t satisfy them, then the redundancies are not legitimate.”

Six steps to doing it right

You need to follow these six steps if you want a redundancy to be legitimate.

(1) Know thy employees’ rights

There is a common misconception that an employer does not have to follow rules if an employee earns more than $129,300. If an employee is covered by an enterprise agreement or award, he or she can legally challenge a sacking no matter what they earn.

Likewise it’s also wrongly believed that if a person earns a regular salary, he or she is not covered by an award. “Frequency of payment is irrelevant,” says Ross Levin, workplace relations partner at Rigby Cooke legal firm in Melbourne.

(2) Handle adverse action provisions with care

Dismissed employees may claim they have been victimised. Often it’s related to prior union involvement, taking too much sick leave or because they made a complaint or enquiry. In other words, they were sacked for being a “trouble maker”. Making a case is easy, says Levin, and for just a $60 fee a sacked worker can get a hearing with the Fair Work Commission. “In the minds of some employees, it’s a case of spin the wheel of fortune, every player wins a prize,” Levin says.

To counteract this, employers need to make sure any previous complaints were handled with utmost care. “You’ve got to demonstrate with your language that you have no problem with them raising a complaint at any point – even if you disagree with the complaint,” Levin says.

(3) Remember to consult

In a recent case, a company was closed and the employees successfully argued that this could have been averted with consultation. “They said they would have been willing to go on half wages for four months to see if the company could trade out of its difficulties,” says Levin.

In all, Levin says that an ignorance of procedure could cost an employer dearly. Not consulting may mean that the entire workforce stays on wages until the process is correctly and fairly followed.

Mark Curran, special counsel at Brisbane law firm DibbsBarker says employees should be given an opportunity to respond before their employment is terminated, in the presence of a support person: “They may have an alternative proposal, in which case, it should be considered,” Curran says.

(4) Take notice of notice

Make a mistake with an employee’s notice periods and it could cost you dearly. Any employee promoted over a long period may have retained an original outdated contract with patently unfair notice periods. “Make sure you get something in writing about the termination notice – especially when they change jobs,” says Levin. A tribunal may rule that they can’t be expected to get a job quickly. “Sometimes a court will rule that an employee stays on for 12 months before being terminated – at a huge cost to the employer,” Levin says

(5) Make the future look rosy

The best employers know that releasing somebody into the job market “unassisted” is at best irresponsible. “This isn’t just about the outplacement process, it extends to offering financial advice and where necessary, psychological support in the form of an employee assistance programs,” says Sue Robinson, who heads up corporate services at outplacement company, HR Solutions.

(6) Always communicate

In the end, all participants in the redundancy “business” stress one thing – it is all about effective communication between employer and ex employee.

“The right way is to make the person feel they’re an individual and not easily dispensable – even where there are mass redundancies,” says Jess Fisher, a partner of law firm FCB Group. “A lot of people put their soul into the workplace – hours of time and effort as well as their loyalty and passion.”

“Treating people with courtesy, respect and value is the real difference between a good and bad redundancy,” says Fisher. “It’s not all about the money.”