HR Experts Dismissal Disputes

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UNFAIR DISMISSAL

What is a genuine redundancy?

A person's dismissal was a case of genuine redundancy if:

•the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, and

•the employer has complied with redundancy consultation obligations under a modern award or enterprise agreement that applied to the person’s employment.

GENERAL PROTECTIONS & UNLAWFUL TERMINATION

Protection from discrimination!

An employer also must not take adverse action against an employee because of an attribute of that person, including their:

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•Race

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•Sexual preference

•Age

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•Marital status

•Family or carer's responsibilities

•Pregnancy

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•Political opinion

•National extraction or social origin

•Temporary absence from work

because of illness or injury

•Trade union membership or

participation in trade union

activities

•Filing a complaint

•Race

•Colour

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•Sexual orientation

•Age

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FAIR WORK REPRESENTATION SERVICES

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What is unfair dismissal?

•the employee was dismissed, and

•the dismissal was harsh, unjust or unreasonable, or

•the dismissal was not a case of genuine redundancy, or

•the dismissal was not consistent with the Small Business

Fair Dismissal Code, where the employee was employed

by a small business. A small business is a business that

employs fewer than 15 employees.

Who is eligible to make an application?

An employee is eligible to make an application for unfair dismissal

if they have completed the minimum employment period of:

•one year—where the employer employs fewer than 15 employees

•six months—where the employer employs 15 or more employees

In addition, if the person earns more than $138,900 per year, at least one of the following must apply:

•an award covers the person

•an enterprise agreement applies to the person

Note: The application must be lodged within 21 days of the dismissal coming into effect.

What is harsh, unjust or unreasonable?

•whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

•whether the person was notified of that reason

•whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

•any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

•if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

•the degree to which the size of the employer's enterprise would

be likely to impact on the procedures followed in effecting the dismissal

•the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

•any other matters that the Commission considers relevant

In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

•the employer's enterprise

•the enterprise of an associated entity of the employer

What are general protections?

The general protections have been introduced to:

•protect workplace rights

•protect freedom of association

•provide protection from workplace discrimination, and

•provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse actions that can be taken against an employee or potential employee might include:

•dismissing them

•not giving them their legal entitlements

•changing their job to their disadvantage

•treating them differently than others

•not hiring them

•offering them different (and unfair) terms and conditions, compared to other employees.

Unlawful termination?

It's illegal for an employer to dismiss an employee for a number of reasons. These reasons include a person's:

Sham contracting arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.