Nsw & Unfair Dismissal
NSW Industrial Relations is publishing regular Information on topics relating in
to the changes and what the move into the national scheme means for both employers and employees.
NSW employers can subscribe to NSW Industrial Relations Whats New service to be automatically advised of their regular updates. Or you'll be able to access the Information on Twitter at NSW_IR.
The new unfair dismissal laws now apply to all NSW employers and employees. Unfair dismissal happens where a worker is sacked (or threatened With the sack) by their employer and they believe the action is harsh, unreasonable or unjust.
Importantly, the time frame in And also this to lodge an unfair dismissal claim has been reduced in one 21 days to 14 days.
To lodge an unfair dismissal claim, qualifying periods apply depending upon whether the business has much less or more compared to 15 full-time equivalent employees.
For businesses with other 15 or more full-time equivalent employees, the qualifying period is 6 months; for businesses with less than 15 full-time employees, the period is 12 months.
A new small business Fair Dismissal Code applies to businesses along with other fewer compared to 15 full-time equivalent employees. This delivers guidance and assistance for small business when considering dismissing an employee.
Small organization employees cannot create a claim for unfair dismissal in the very first 12 months following their engagement. If an employee is dismissed after this period along with the employer has followed the Code then the dismissal will likely be deemed to be fair.
Employees who've been dismissed simply because of a company downturn or their position is no longer needed cannot bring a claim for unfair dismissal.
However, the redundancy should be genuine. Re-filling the position with other a manufacturer new employee isn't a real redundancy.
The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employees conduct is sufficiently severe to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and critical breaches of occupational health and safety procedures. to get a dismissal to be deemed fair It is sufficient, although not essential, that an allegation of theft, fraud or violence be reported into the police. Of course, the employer must have reasonable grounds for Generating the report.
Other Dismissal
In other cases, the small company employer must give the employee a reason The exact reason he or she is at risk of being dismissed. The exact reason have to be a valid reason Based on the employees conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if There's no improvement.
The little organization employer must provide the employee with an opportunity to respond in to the warning and give the employee a reasonable chance to rectify the problem, having regard in to the employees response.
Rectifying The problem may well involve the employer providing extra training and ensuring the employee knows the employers job expectations.
Procedural Matters
In discussions through an employee in instances where dismissal is possible, the employee can have Another person present to assist. However, the other person cannot be a lawyer acting in a expert capacity.
A small organization employer is going to be required to provide evidence of compliance Using the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, such as evidence that a warning has been given (except in instances of summary dismissal). Evidence may well contain a accomplished checklist, copies of written warning(s), a statement of termination or signed witness statements.
by: Andrew Koleda
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