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Unlawful termination

Applies to all employees in Australia

regardless of the number of persons employed

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Protection against unlawful termination Under Fair Work Australia it will

continue to be unlawful for an employer to terminate an employees employment on discriminatory grounds

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When can’t I dismiss an employee?You cannot dismiss

an employee based on a range of factors, including:

Race Colour Sex Sexual preference

Physical or mental disability

Marital status Age Ethnicity Religion Family

responsibilities Political opinion

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And /or because he or she … Is temporarily absent

from work because of illness or injury

Is a member of a union

Participates in union activities outside working hours or with your consent within working hours

Has taken or wants to take parental leave

Does or does not want to be a member of a union

Is seeking election or is elected rep of employees

Has filed a complaint against you or another employer about non compliance with any laws or regulations

Has participated in legal proceedings against you or another employer

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Or because…. Absence from

work during maternity leave or other parental leave

Temporary absence from work because of carrying out of a voluntary emergency management activity where the absence is reasonable having regard to all circumstances

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If an employee is over 45 years old and has completed at least 2 years of continuous employment – the required period of notice must be increased by 1 week

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Summary Dismissal

(dismissal without notice) Summary dismissal is generally used

only when an employees conduct is characterised as being gross, serious and wilful misconduct. This conduct must really evidence an intention by the employee not to be bound by the contract of employment any longer.

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Common reasons that are used for summary dismissal include: Conduct that

threatens someone’s health & safety

Conduct that threatens the organisations reputation, viability or profitability.

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Examples might be ….. -Gross

insubordination -Abusive language -Threatening

behaviour -Violence -Obscenity -Sexual harassment -Sleeping on the job -gross dishonesty

-Drunkenness or drug taking

-Serious and wilful disobedience

-Serious incompetence or neglect of duty

-Serious breach of confidentiality or good faith

-Criminal offences

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Summary Dismissal ProcessBest PracticeThe organisation’s

responsibilities involve: Conducting a full,

objective investigation into the misconduct (witnesses, statements etc)

Give the employee an opportunity to answer the allegations and have an advocate present at that meeting/investigation.

 

The employer should consider the employee’s responses and take this into consideration before taking any action, bias and pre-judging should not be evident

Written notice of termination with the reasons for termination

Written final payment advice.

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For dismissal to be deemed fair…. It is sufficient , though not

essential that an allegation of theft, fraud or violence be reported to the police. (with reasonable grounds for making the report)

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Unfair dismissal

Major changes to unfair dismissal commence July 1 2009.

Current exemptions from unfair dismissal for businesses with less

than 100 employees will be abolished

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Unfair dismissal

Under Fair Work Australia …Who do unfair dismissal laws apply to :

All constitutional corporation employers in Australia with more than 15 employees

All employees in Victoria, the Act and NT

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For first 18 months fulltime equivalent will be used

Ie all hours divided by 38

(expires July 2011)

Count will eventually include casuals who have regular and systematic employment

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Dismissal is unfair if …. Harsh , unjust or

unreasonable Not a genuine

redundancy Inconsistent with

Fair Dismissal Code (for Small Businesses)

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Exclusions based on genuine redundancies, seasonal employment and specified task employment remain.

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Also…. Where there are fewer than 15

employees people can be dismissed within a 12 month qualifying period.

15+ a 6 month qualifying period applies

During the qualifying period an employee is not able to claim unfair dismissal if they are terminated.

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Note unfair dismissal provisions also cover remaining workers in NSW

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Unfair dismissal Unfair dismissals are terminations

that are “harsh unjust or unreasonable”

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Fair Dismissal Code If a small business(<15

employees)can demonstrate to have followed the FDC a dismissal will not be considered unfair.

The FDC sets out the circumstances in which a summary dismissal is warranted. Eg fraud, theft , violence

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The FDC also allows for termination due to genuine redundancy and

termination for poor performance or conduct provided the employee has been warned and given a chance to improve ie clarifying expectations, standards of work, additional training.

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Naturally if a claim is brought against a

small business the employer should provide evidence that they have complied with the FDC. See code

Evidence would be completed checklist , copies of written warnings etc

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How does this effect the HR department? As there substantial changes in the

legislation since the commencement of Workchoices HR departments should be reviewing their policies and procedures, training staff etc in new processes/legislation (including the FDC)

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Performance or conduct not considered serious enough for on the spot dismissal – some considerations…….

Less gross, serious and/or wilful examples of misconduct or poor performance may not warrant summary dismissal

Each incident of poor performance or unacceptable performance may be investigated/ documented

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Procedural Fairness and Natural Justice demand that the person complained of is made aware of the allegations or poor performance.

They must have an opportunity to answer the allegations.

They may have a support person or an advocate present with them at time of interview

They must not be pre-judged by the decision makers.

Objectivity, respect and consideration must be displayed at all times

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When warranted ‘Warnings’ flow from investigation, preferably in writing and delivered to employee.

Generally 3 ‘Warnings’ are issued. The 3rd Warning letter must state that employment is in jeopardy if there are further examples of unacceptable performance etc.

 

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Warning letters must describe the unacceptable performance etc, the standards expected, the support offered and time to rectify issues.

 A written letter of dismissal with reasons for dismissal must be provided.

All final payments must be made upon termination with a written advice as to make-up of payment.

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Process when lodging claim Employee lodges claim within 14 days If there are disputed facts Fair Work

Australia will hold a conference to try and mediate a solution.

Hearing may be held. Lawyers or paid agents will only be

allowed to represent employee in event of efficiency or fairness issues. (allowed if union/ employer lawyer or agent)

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Remedies for unfair dismissalIf dismissal found to be unfair then the Fair

Work Authority can order: Reinstatement to former position or one no

less favourable Continuity of employment(continuous

service) Compensation for lost pay (capped at 6

months pay) Compensation if reinstatement is not possible

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Injured Employees 

  An employer cannot dismiss an injured

worker within six months of the occurrence of a work- related injury or illness for reasons associated with the injury.

Dismissal for other reasons within the six months following an injury can occur but if disputed by the employee, the employer must prove that the reason for dismissal is not injury related.

 

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If an employee is dismissed after six months

from the date of injury the employee can claim reinstatement within two years of the dismissal. 

Medical evidence must be supplied to terminate the employee and medical evidence must be supplied upon request for reinstatement that the injured worker is now fit for duty. Always make decisions based on medical evidence in these cases.

Your opinion, hearsay, etc are no substitute for professional opinion.