subject: The Fair Work Act Changes The Landscape For Unfair Dismissal [print this page] The Fair Work Act 2009 (Cth) attempts to make certain fairness when dismissing and employee. It stipulates that an employee was unfairly dismissed if:
Fair Work Australia (FWA) decides the dismissal was harsh, unjust or unreasonable
the dismissal was not a genuine redundancy
the dismissal was inconsistent Using the little business Fair Dismissal Code (where the code applies).
Removal of those small organization exemption
Although the determining factors of unfair dismissal seem to be the same while they were under the previous legislation the scope has been drastically broadened. prior to the introduction of those act, businesses with other fewer than 100 employees were exempt in one unfair dismissal. Now, all businesses even though they have only one employee appear to be subject to unfair dismissal claims now that 1 July 2009.
The small organization Fair Dismissal Code
There is genuinely a separate set of rules that apply to little businesses Making it less difficult to dismiss employees in consideration of their lack of HR and other professional support. Fair Work Australia has essentially introduced a check list program for these businesses to follow when dismissing employees.
The little organization dismissal code applies to businesses And also this employ less compared to 15 employees. When introduced, the way in Which the numbers were calculated included 15 full time equivalent employees. Even so given that January 2011 this has been reworked to utilize a head count calculation irrespective of these employees status of casual, part time or permanent, essentially broadening the scope and implication of these legislation even further.
Who can make a claim?
There are several exceptions to eligibility to claim for unfair dismissal as follows:
employees who have not completed the qualifying period of employment of at least six months Using the employer where the employer just isn't a small business, or 12 months where the employer is quite a little business
employees not covered by a Modern Award or agreement whose guaranteed annual earnings exceed the 'high income threshold' (currently $108,300 pa)
employees utilised to get a fixed term, specified task or season
employees subject to a training agreement and whose employment is limited into the duration of that agreement and where the termination is at the end of these training period
employees dismissed in situations of real redundancy
contractors.
Powers and process
Generally employees have Two weeks from the time dismissal took effect to lodge their application, Nonetheless FWA does have some discretion to extend this should extenuating situations exist. Normally the first step towards remedy can be a private conference between the parties to discuss the issues and to make an effort to reach a voluntary resolution.
There seem to be two remedies Which could be awarded by FWA in relation to unfair dismissal applications And also this incorporate reinstatement to the employees previous position And this can incorporate back pay. although This extremely is granted if in consideration of all the facts that it was reasonably practicable to the employee to re-enter the respondents business. The more Well-liked answer is compensation which is capped at 26 weeks or 6 months of ordinary wages.
Redundancy
An employee cannot claim unfair dismissal where the termination was due to a 'genuine redundancy'. A actual redundancy is if the employer no longer requires the role to be performed by anyone because of changes in to the operational requirements, and has complied with any obligation in a modern award or enterprise agreement that applied in to the job to consult concerning the redundancy.
