subject: Unfair Dismissal In Australia - Who Is Protected? [print this page] Unfair Dismissals under the Fair Work Act 2009 (Cth)
Employees is going to be protected from one unfair dismissal when they have completed the minimum employment period, And this is:
12 months for little businesses; and
six months for other businesses.
A little organization employer is one who employs less compared to 15 full-time equivalent employees. in one 1 January 2011, a little organization employer will be one along with other less than it is 15 full-time employees.
The employee have to at the same time either be covered by a modern award, an organization agreement or earn less than the high income threshold (currently $113,800 per annum).
It is as well possible in some situations for casual employees to make a claim for unfair dismissal, provided they fulfil the above criteria and:
were utilized on a regular and systematic basis; and
had a reasonable expectation of continuing employment.
Dismissal
In order to access the unfair dismissal regime, the employee need to happen to be dismissed. Employers need to be aware that dismissal might include situations where an employee has been forced to resign because of the employers behaviour.
Genuine Redundancy
A dismissal will not be unfair if It is a case of genuine redundancy. In order to get a redundancy to be genuine, the employer have to not require the employees job to be performed by anyone due in to the fact of changes at the operational requirements of these employers business. Further, the employer must have complied along with other any applicable consultation requirements. Finally, it must not be reasonable towards the employee to happen to be redeployed within the employees business.
Small enterprise Fair Dismissal Code
Small enterprise employers need to at the same time comply With the small business Fair Dismissal Code (the Code). If the Code is not complied with, the dismissal may be unfair.
Harsh, Unjust or Unreasonable Factors
For a dismissal to be unfair, it must have been harsh, unjust or unreasonable. In determining whether a dismissal is harsh, unjust or unreasonable, Fair Work Australia (FWA) will consider different factors including:
whether there was a valid reason for the dismissal;
whether the employee was notified of The reason for dismissal;
whether the employee was provided through an chance to respond to troubles of capacity or conduct;
whether the employer refused to allow the employee to bring a support person to meetings; and
whether the employee was provided along with other warnings.
Applications to Fair Work Australia
Applications for unfair dismissal have to be built to FWA within 2 weeks of the dismissal occurring. In some exceptional circumstances, FWA may allow an application to be made out of time.
Once an application has been lodged, FWA will notify the employer who will likely be required to lodge an Employer Response to Application for Unfair Dismissal resolution form within a specified period of time.
A conciliation conference will then be held and led by a FWA conciliator, and the parties will attempt to get to a resolution. If the matter doesn't get to resolution, a hearing can be scheduled.
Remedies for Unfair Dismissal
The preferred resolution for unfair dismissal is reinstatement. However, where reinstatement is not appropriate, compensation might be ordered.
