Redundancy pay and small business exemption
I’m in NSW and have recently been told my role is being considered for redundancy. I have been with the business for just over 5 years.
The employer has indicated that if the redundancy proceeds, I would receive:
- salary owing to the end date
- accrued but unused annual leave
- 4 weeks’ notice paid in lieu
There has been no mention of statutory redundancy pay.
Based on the Fair Work redundancy table, my understanding is that an employee with at least 5 years but less than 6 years of continuous service would ordinarily be entitled to 10 weeks’ redundancy pay, unless an exemption applies.
I suspect the employer may be intending to rely on the small business redundancy exemption, but I am not sure whether that applies.
The issue is headcount. The business appears to be close to the 15-employee threshold. I do not have access to everyone’s employment contracts or contractor agreements, so I cannot confirm the exact legal status of each person. However, there are around 20 people in the main “full team” internal channel, and there are also contractors who have been engaged on long-term projects and integrated into the business.
How does this play out, and what should I be doing to protect myself. Who is responsible for making the determination on who is an employee vs a contractor?
Thanks in advance.
TL;DR: Can an employer rely on the small business redundancy exemption by excluding long-term contractors from the 15-employee count, where those contractors appear integrated into the business and may work in practice like employees?