RSL Management Seminar Speaker: Sascha Cook

UNFAIR DISMISSAL Unfair dismissal occurs when an employees’ employment is terminated in circumstances that are “harsh, unjust and unreasonable”. Must comply with both procedural (process) and substantive (for a good reason) fairness

HARSH, UNJUST, UNREASONABLE In considering whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account: whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees), and whether the person was notified of that reason, and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and

HARSH, UNJUST, UNREASONABLE any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal, and if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal, and the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal, and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and any other matters that FWA considers relevant.

UNFAIR DISMISSAL Restrictions on access to unfair dismissal provisions will be changed. An application for unfair dismissal may be made in the following circumstances: An employee of an employer with 15 or more employees must have been employed for six months; An employee of an employer with fewer than 15 employees must have been employed for 12 months;

UNFAIR DISMISSAL An employee not covered by an Award or Agreement may not make an application if s/he earns more than $113,800 indexed; Reinstatement will be the principal remedy available under the new process. Compensatory remedies must not exceed the lower of half the high income threshold (as above) or 26 weeks’ wages; Claims for unfair dismissal must be made within 14 days of the dismissal; The application will be dealt with by Fair Work Australia and will commence with a conference between the parties that may take place at the workplace;

UNDERSTAND ISSUES Understand and identify the issue(s)- It is important to distinguish performance and conduct matters; Performance matters – identify whether any impacting factors (Nb: may be identified by employee at meeting); Is the performance being assessed against clear, measurable and reasonable KPIs?

EVIDENCE Obtain relevant evidence Signed witness statements, complaint etc. Details of relevant performance issues (specific examples) This information must be provided to the employee

PROCESS It is important that the employer not be seen to predetermine the outcome.

DISCIPLINE & TERMINATION The process includes: Allegations regarding conduct/ performance matters provided to the employee in writing; the employee must be afforded an opportunity to respond to such matters (whether in writing or verbally and be provided with sufficient time to respond); the employee must be afforded a right of representation/ support person; the employee must be advised of the possible outcome should they fail to provide a satisfactory response.