1 Unlawful termination Applies to all employees in Australia regardless of the number of persons employed

2 Protection against unlawful termination Under Fair Work Australia it will continue to be unlawful for an employer to terminate an employees employment on discriminatory grounds

3 When can ’ t I dismiss an employee? You cannot dismiss an employee based on a range of factors, including: Race Colour Sex Sexual preference Physical or mental disability Marital status Age Ethnicity Religion Family responsibilities Political opinion

4 And /or because he or she … Is temporarily absent from work because of illness or injury Is a member of a union Participates in union activities outside working hours or with your consent within working hours Has taken or wants to take parental leave Does or does not want to be a member of a union Is seeking election or is elected rep of employees Has filed a complaint against you or another employer about non compliance with any laws or regulations Has participated in legal proceedings against you or another employer

5 Or because …. Absence from work during maternity leave or other parental leave Temporary absence from work because of carrying out of a voluntary emergency management activity where the absence is reasonable having regard to all circumstances

6 If an employee is over 45 years old and has completed at least 2 years of continuous employment – the required period of notice must be increased by 1 week

7 Summary Dismissal (dismissal without notice) Summary dismissal is generally used only when an employees conduct is characterised as being gross, serious and wilful misconduct. This conduct must really evidence an intention by the employee not to be bound by the contract of employment any longer.

8 Common reasons that are used for summary dismissal include: Conduct that threatens someone ’ s health & safety Conduct that threatens the organisations reputation, viability or profitability.

9 Examples might be ….. -Gross insubordination -Abusive language -Threatening behaviour -Violence -Obscenity -Sexual harassment -Sleeping on the job -gross dishonesty -Drunkenness or drug taking -Serious and wilful disobedience -Serious incompetence or neglect of duty -Serious breach of confidentiality or good faith -Criminal offences

10 Summary Dismissal Process Best Practice The organisation ’ s responsibilities involve: Conducting a full, objective investigation into the misconduct (witnesses, statements etc) Give the employee an opportunity to answer the allegations and have an advocate present at that meeting/investigation. The employer should consider the employee ’ s responses and take this into consideration before taking any action, bias and pre- judging should not be evident Written notice of termination with the reasons for termination Written final payment advice.

11 For dismissal to be deemed fair …. It is sufficient, though not essential that an allegation of theft, fraud or violence be reported to the police. (with reasonable grounds for making the report)

12 Unfair dismissal Major changes to unfair dismissal commence July Current exemptions from unfair dismissal for businesses with less than 100 employees will be abolished

13 Unfair dismissal Under Fair Work Australia … Who do unfair dismissal laws apply to : All constitutional corporation employers in Australia with more than 15 employees All employees in Victoria, the Act and NT

14 For first 18 months fulltime equivalent will be used Ie all hours divided by 38 (expires July 2011) Count will eventually include casuals who have regular and systematic employment

15 Dismissal is unfair if …. Harsh, unjust or unreasonable Not a genuine redundancy Inconsistent with Fair Dismissal Code (for Small Businesses)

16 Exclusions based on genuine redundancies, seasonal employment and specified task employment remain.

17 Also …. Where there are fewer than 15 employees people can be dismissed within a 12 month qualifying period. 15+ a 6 month qualifying period applies During the qualifying period an employee is not able to claim unfair dismissal if they are terminated.

18 Note unfair dismissal provisions also cover remaining workers in NSW

19 Unfair dismissal Unfair dismissals are terminations that are “ harsh unjust or unreasonable ”

20 Fair Dismissal Code If a small business(<15 employees)can demonstrate to have followed the FDC a dismissal will not be considered unfair. The FDC sets out the circumstances in which a summary dismissal is warranted. Eg fraud, theft, violence

21 The FDC also allows for termination due to genuine redundancy and termination for poor performance or conduct provided the employee has been warned and given a chance to improve ie clarifying expectations, standards of work, additional training.

22 Naturally if a claim is brought against a small business the employer should provide evidence that they have complied with the FDC. See code Evidence would be completed checklist, copies of written warnings etc

23 How does this effect the HR department? As there substantial changes in the legislation since the commencement of Workchoices HR departments should be reviewing their policies and procedures, training staff etc in new processes/legislation (including the FDC)

24 Performance or conduct not considered serious enough for on the spot dismissal – some considerations ……. Less gross, serious and/or wilful examples of misconduct or poor performance may not warrant summary dismissal Each incident of poor performance or unacceptable performance may be investigated/ documented

25 Procedural Fairness and Natural Justice demand that the person complained of is made aware of the allegations or poor performance. They must have an opportunity to answer the allegations. They may have a support person or an advocate present with them at time of interview They must not be pre-judged by the decision makers. Objectivity, respect and consideration must be displayed at all times

26 When warranted ‘ Warnings ’ flow from investigation, preferably in writing and delivered to employee. Generally 3 ‘ Warnings ’ are issued. The 3 rd Warning letter must state that employment is in jeopardy if there are further examples of unacceptable performance etc.

27 Warning letters must describe the unacceptable performance etc, the standards expected, the support offered and time to rectify issues. A written letter of dismissal with reasons for dismissal must be provided. All final payments must be made upon termination with a written advice as to make- up of payment.

28 Process when lodging claim Employee lodges claim within 14 days If there are disputed facts Fair Work Australia will hold a conference to try and mediate a solution. Hearing may be held. Lawyers or paid agents will only be allowed to represent employee in event of efficiency or fairness issues. (allowed if union/ employer lawyer or agent)

29 Remedies for unfair dismissal If dismissal found to be unfair then the Fair Work Authority can order: Reinstatement to former position or one no less favourable Continuity of employment(continuous service) Compensation for lost pay (capped at 6 months pay) Compensation if reinstatement is not possible

30 Injured Employees An employer cannot dismiss an injured worker within six months of the occurrence of a work- related injury or illness for reasons associated with the injury. Dismissal for other reasons within the six months following an injury can occur but if disputed by the employee, the employer must prove that the reason for dismissal is not injury related.

31 If an employee is dismissed after six months from the date of injury the employee can claim reinstatement within two years of the dismissal. Medical evidence must be supplied to terminate the employee and medical evidence must be supplied upon request for reinstatement that the injured worker is now fit for duty. Always make decisions based on medical evidence in these cases. Your opinion, hearsay, etc are no substitute for professional opinion.