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New fair dismissal process enables employees of small businesses to claim for unfair dismissal
Julia Gillard, Workplace Minister, has announced the new process for the dismissal of employees which includes special arrangements, for small business employees, which require a warning and time for the employee to change their behaviour. Current laws protect employers with less than 100 employees but under the proposed laws, expected to come into effect in July 2009, an employee of a small business (less than 15 employees) will be able to claim for unfair dismissal after they have been employed for at least 12 months.
For an employer to dismiss someone fairly after 12 months the employer will have to comply with the new code. A Fair Dismissal Checklist has been developed to help small business employers comply with the code. It is in the interests of the employer to complete this checklist at the time of dismissal and to keep it in case of a future unfair dismissal claim. However, it is not a requirement of the Fair Dismissal Code that the checklist be completed.
For businesses with more than 15 employees, an employee can make an unfair dismissal claim after 6 months of employment.
Warnings
The employer must give the employee a valid reason why the employee is at risk of being dismissed. This is based on the employee's conduct or capacity to do the job. (no warning is required in the case of serious misconduct)
Only one warning is required. It is strongly recommended for it to be in writing, though this is not mandatory The employer must give the employee a reasonable opportunity to respond and rectify the problem. This may include training and ensuring the employee knows the employer's expectations.
Fair Dismissal Process
Unfair dismissal claims must be lodged with Fair Work Australia within 7 days. Fair Work Australia will be able to make initial inquiries and discuss issues directly with the Employer and the Employee and will not allow legal representation unless in exceptional circumstances.
Outcome
Reinstatement will be the primary outcome unless it is not in the interests of either party Where reinstatement is not feasible, compensation may be ordered to a maximum of six months pay.
Exemptions:
Employees who have been dismissed due to business downturn or because their position is no longer needed cannot bring a claim for unfair dismissal, provided the company can show genuine operational reasons for the redundancy.
Summary dismissal
A dismissal without notice or warning, often called a `summary dismissal', is also covered in the code. The employee's conduct must be sufficiently serious to justify immediate dismissal e.g. serious theft, fraud, violence or breaches of occupational health and safety procedures.
What you need to do
All businesses, regardless of size, should ensure they have:
Clients of Your HRmanager Retained Employer Advisory Service can contact us for guidance on any situation where employee performance is not meeting expectations. In addition, clients can easily download templates for these documents from the Your HRmanager Online Library
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