2. Number of unfair dismissal cases is surging
2009-2010 2010-2011 2011-2012
⬆60% ⬆62% ⬆60%
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3. Fair Work Australia do not provide a clear definition
The following must be addressed:
→ A valid reason is provided for the dismissal
→ The employee is notified of the reason
→ The employee is able to respond
→ ANY matter FWA believes is relevant
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4. An employee can lodge an unfair dismissal
application if they:
→ Met the minimum service requirements
→ Are covered by a Modern Award or Agreement OR
earning less than the high Income threshold of $118,100
There are no exemptions for small businesses
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5. Employee is reinstated to their former job
OR
The employee is paid compensation – capped at the
lesser of 26 weeks pay of $59,050 (50% of high income
threshold)
No appeal option
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6. Unlawful dismissals – based on age, sex, religion, unions,
etc
Adverse/action general protection claims
Claims based on discrimination – bullying, harassment,
etc
As an employer you need to consider all of these
before dismissing an employee
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8. You can NOT stop an employee making a claim but
you CAN create the best possible defence:
→ Ensure you have clear & documented polices and
procedures
→ If you need to discipline an employee give them notice of
the meeting and have another person in the meeting
→ Document any disciplinary action, conversations, agreed
outcomes or comments
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9. Ensure your employment contracts comply with the
FWA and Modern Awards
Change your probationary period to at least six
months
Ensure you have clear & documented polices and
procedures
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10. Things you SHOULD do when dismissing an
employee:
→ Fully consider all possible claims
→ Document everything!
→ Follow a clear, fair and reasonable process
→ Provide the employee with the applicable notice period
→ Dismiss without notice if appropriate
→ Pay out all statutory entitlements
→ Don’t be over generous
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12. HR Review service
1. Policy review and implementation
2. Legal review
3. Review of recruitment, induction and exit processes
4. Work Health and Safety
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Heavy fines apply Re-instatement orders are common A dismissal will be UNFAIR if it is “harsh, unjust or unreasonable” OR the dismissal is called a redundancy, but the redundancy is not ‘genuine’
Fair Work Australia (FWA) do not provide a definition of unfair dismissal only a list of things to be considered A valid reason is provided for the dismissal Employee is notified of the reason Employee is able to respond ANY other matter FWA believes is relevant
Minimum service period – 12 months for small business and 6 months for any other business FWA tightened their definition of small business – less than 15 employees FWA have also produced a code of dismissal for small businesses which offers limited protection to businesses
Adverse/action general protection claims - no maximum compensation cap If the employee has made a complaint about something and then you fire them as a result of that, or The employee has applied for another position within the organisation but didn’t get it and you fire them for it
You can NOT stop an employee making a claim but you CAN create the best possible defence: Ensure you have clear & documented polices and procedures If you need to discipline an employee give them notice of the meeting and have another person in the meeting Document any disciplinary action, conversations, agreed outcomes or comments – even if it’s just commenting on an employee’s tardiness, appearance or a minor infractions
Ensure your employment contracts comply with the FWA and the Modern Awards Change your probationary period to at least six months Ensure you have clear & documented polices and procedures – that are available to all employees and include what happens when they are breached
Things you CAN do when dismissing an employee: Fully consider all possible claims Document everything! Follow a clear, fair and reasonable process – control the process don’t do it in the heat of the moment! Provide the employee with the applicable notice period Dismiss without notice if appropriate Pay out all statutory entitlements Don’t be over generous – this may backfire – eg if the employee is caught stealing and you dismiss them immediately but because they have been with you 5 years you decide to pay notice – the FWA could say you didn’t think that it was so serious and maybe the dismissal was unfair – you cast doubt about the dismissal even if it is in fact FAIR
If something goes wrong DON’T ring the FWA – it’s the same as ringing the ATO if you haven’t paid your tax on time. They record your name, ABN and trading name in the first instance
Review of existing employment contracts and recommend required changes Review of existing policy, procedures and HR systems Implementation of relevant employment policies to your business including but not limited to things like: Annual leave, employee benefits, hours of work, unpaid leave, mobile phones, privacy, public holidays, WHS, social networking and many more Implementation of employment related forms including: Expense claim form, leave application form, salary sacrifice form At the end of this phase you will have a clear set of rules and procedures governing business operations and personal conduct of employees Legal review We will work in conjunction with National workplace Lawyers to review and make recommendations around employment contracts to ensure they are in accordance with the Fair Work Act 2009 including the National Employment Standards and the Modern Awards Review any Enterprise Agreements you may have Ensure compliance with current legislation Implementation of recruitment, induction and exit processes Create an efficient process to attract and secure talent – recruiting strategy & selection process Align employee responsibilities to strategic goals of the organisation, measure results and provide constructive feedback – build induction process, set goals, performance management system, how to exit an employee Increase the skills and knowledge of the team and allow people to grow their career while creating loyalty – training budgets, career development, coaching & mentoring, core competency levels Reward and recognise excellent performance – link clear performance goals to rewards, promote flexibility in the work place: financial rewards, recognition & people policies WHS Implement a review of the health and safety policies and training systems to ensure a safe work place for all employees, including: first aid requirements, protective clothing and equipment, WHS committee & representative, employee training and more
