Unfair Dismissal

Unfair Dismissal Laws have recently changed due to the implementation of the Fair Work Act 2009.

A person has been unfairly dismissed if:

(a) The person has been dismissed; and

(b) The dismissal was harsh, unjust or unreasonable; and

(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code is a checklist that an employer completes at the time of a dismissal, and keeps in case of future unfair dismissal claims. It is not a requirement to complete the checklist, however, it could be useful. I

A person is protected from unfair dismissal if either a modern award covers them, an enterprise agreement applies, or if they earn less than the 'high income threshold'. The Fair Work regulations (2009) set the high income threshold at $108,300 for full-time employees, and for part-time employees the amount would be pro rata.

Genuine Redundancy

The meaning of 'Genuine Redundancy' is defined in the New Fair Work Act 2009. The Act defines Genuine Redundancy as a two part process:

1. 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

2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

The key changes to unfair dismissal are:

• Small business employees can only claim unfair dismissal after they have served a qualifying period of 12 months. N.B. Small business is defined as a business which employs less than 15 employees at the relevant time. While for larger business the qualifying period is six months.

• Unfair dismissal rights for casual employees.

• There is no longer a bar on employees bringing unfair dismissal proceedings based on the number of employees their employer engages. In other words those who engage 2 or 200 employees can be subject to an unfair dismissal claim.

• Qualifying periods before an employee may bring an unfair dismissal claim remain at 6 months for employers of 15 or more employees, and have been increased to 1 year for employers of fewer than 15 employees.

• A fair dismissal code for employers of fewer than 15 employees. Compliance with the code will be a defence to an unfair dismissal claim. However, the code largely mirrors the current practice of the Industrial Relations Commission in determining unfair dismissals and is unlikely to provide any substantial protection for small businesses.

• If an employee is made genuinely redundant and the employer has fulfilled all the requirements of any applicable award or agreement, the employee cannot claim unfair dismissal as a remedy.

• "Operational reasons" are no longer a defence to a claim of unfair dismissal. However, a dismissal is not unfair if it was done through a genuine redundancy.

• Applications for a remedy for unfair dismissal are to be made to the new agency - Fair Work Australia. The application must be made within seven days after the dismissal took effect.

If you have a concern regarding Unfair Dismissal Laws, please call us on 1300 QUINNS (1300 784 667) or +61 2 9223 9166 or complete and submit the Express Enquiry form on the top right hand side of this page and we will contact you to discuss your enquiry.

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