Unfair Dismissal - Effective 1st July 2009

The Access HR Team | 1 Sep 2009 1:26 PM

The New Unfair Dismissal regime became effective on 1^st July 2009. It is predicted that Fair Work Act will protect an additional 3 million employees from unfair dismissal, making the new unfair dismissal regime more accessible to employees.

The Bill abolishes the 100 employee exemption introduced by WorkChoices, and introduces a Small Business Fair Dismissal Code to assist small business employers. Where a small business employer adheres to the Code an unfair dismissal application may not be brought by the dismissed employee.

Currently the definition of a small business is a business with fifteen (15) full time equivalent employees or less, calculated based on average total hours worked by all employees of the business per week.

A person is protected from unfair dismissal at a time if, at that time:

The person is an employee who has completed a period employment for at least the minimum period (Small Business Employer – 12 months, Not a Small Business Employer – 6 months); and
A modern award covers the person; or
An enterprise agreement applies to the person in relation to their employment; or
The sum of the person’s annual rate of earnings, and such other amounts are less than the high income threshold.

Protection from unfair dismissal is afforded to all employees who have completed the minimum employment periods as mentioned above and are covered by a modern award and/or enterprise agreement or the sum of the person’s annual rate of earnings (and other specified amounts) is less than the stipulated high income threshold.

A person has been unfairly dismissed if Fair Work Australia is satisfied that:

The person has been dismissed (by the employer or a ‘constructive dismissal’ has occurred i.e. the employee was forced to resign from their employment because of conduct engaged in by their employer); and
The dismissal was harsh, unjust or unreasonable; and
The dismissal was not consistent with the Code; and
The dismissal was not a case of genuine redundancy.

When considering if a dismissal is unfair, Fair Work Australia take into account a range of factors including:

· If there is a valid reason for the dismissal relating to the employee’s conduct or capacity

· If the employee is notified of the reason and given an opportunity to respond

· If the dismissal relates to unsatisfactory performance, then whether the employee is warned prior to dismissal.

Another significant change is that in the absence of exceptional circumstances an application for unfair dismissal has to be filed with Fair Work Australia within fourteen (14) days of the dismissal. Previously, an employee had twenty-one (21) days to file such an application.

If Fair Work Australia find that a person has been unfairly dismissed it may;

· Order reinstatement; or

· Compensation only if it considers that reinstatement is inappropriate.

This is a summary of the introduced unfair dismissal legislation under the Fair Work Act. Access HR recommends employers / employees contact Anna Lane or Kim White on (03) 9544 1899 for a tailored response to their dismissal queries.

Source: VECCI

www.fairwork.gov.au

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