EMPLOYMENT LAW FOR EMPLOYERS
FAIR AND UNFAIR DISMISSAL NSW
When Fair Work Australia was passed in 2008, many employers believed that the Small Business Fair Dismissal Code would make it easier to terminate employees. This has not proved to be so, and some owners and managers have found that the courts do not hold with their interpretation of the Code.
In addition, there should be strict adherence to a set of Termination procedures. If there is not, it's possible for a dismissed employee to make an Unfair Dismissal claim.
What we can do for you
The best defence against a possible claim is to have a sound termination policy in place, and where there is a possibility of termination, to make sure that you follow termination procedures that don't allow any loopholes.
We can provide you with a set of guidelines and help you set up appropriate systems for seeing that they are followed. Contact us.
Meanwhile you should be aware of the essentials of the code and what you can expect if an employee lodges a claim.
For underperforming employees the code requires the following:
- The small business employer must give the employee a reason why he or she is at risk of being dismissed. This must be a valid reason based on the employee's conduct or capacity to do the job.
- The employee must be warned either verbally or, preferably in writing, that he or she risks being dismissed if there is no improvement.
- The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response.
- The employee is allowed to have another person present to assist (however, the other person cannot be a lawyer acting in a professional capacity.
What happens in Unfair Dismissal cases?
The employee applies to Fair Work Australia (FWA), which will notify you.
Fair Work Australia takes into account all the factors they consider relevant. In addition to the procedures above, they consider whether the employee has been warned about their unsatisfactory performance before the dismissal, and the impact of the size of the employer's enterprise on the dismissal process, including the absence of dedicated human resource management specialists or expertise.
If Fair Work Australia decides there is good reason to go ahead, the first step is to try and arrange a conciliation, to help both sides to resolve the matter by agreement.
If a resolution can't be reached. a conference or hearing will be held.
If FWA then finds that the dismissal was unfair, it can be an expensive business. You can be ordered to either:
reinstate the employee, or
compensate the person for up to 26 weeks pay (up to a maximum amount of $56,900).
Getting employment contracts right
Policies and Procedures and Codes of Conduct
How to carry out workplace investigations
Avoiding the cost of bullying and harassment claims
Avoiding underpayment claims
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