Unfair Dismissal - RCSA

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• Under the Fair Work Act 2009, Fair Work Australia will hold a conference or a hearing in an unfair dismissal case that involves contested facts. • Fair Work Australia conferences are informal and are the preferred option in an unfair dismissal claim. • Reinstatement will be the preferred remedy for an unfair dismissal claim; however Fair Work Australia can make an order for compensation if reinstatement is inappropriate. • Under the Fair Work Act 2009, Fair Work Australia cannot grant appeals from a decision made in an unfair dismissal case unless it is in the public interest to do so. 16
Rights and Responsibilities under the Fair Work Act 2009 Employers This section of the module caters specifically for employers. While some of the following information has been outlined earlier in the module, this section highlights the information of most relevant to employers. How employers might consider conducting a dismissal There are procedures all employers can follow to reduce the likelihood that a dismissal would be found to be unfair. Some of these include: notifying employees of any problems relating to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); allowing the employee to respond to any perceived problem with their capacity or conduct; allowing an employee to have a support person present to assist at any discussions relating to the dismissal if requested; warning employees of any unsatisfactory performance and the possibility of dismissal before the dismissal. If this is done in writing it may be useful in defending an unfair dismissal claim; organising training to overcome any performance problems; ensuring that if they dismiss the employee that there is a valid reason for the dismissal related to the employee’s capacity or conduct and notifying the employee of that valid reason; and complying with the Small Business Fair Dismissal Code if they employ less than 15 employees. To help with this, the employer can use the Small Business Fair Dismissal Code Checklist. What is the process when Fair Work Australia considers applications for unfair dismissal? When an unfair dismissal application is made, Fair Work Australia is required to consider specified initial matters before considering the merits of the case. These matters are whether: the application was made within 14 days of the dismissal taking effect or further time as Fair Work Australia allowed; the person was protected from unfair dismissal (e.g. they had served the relevant minimum employment period and had been “dismissed” within the meaning of the legislation); the dismissal was consistent with the Small Business Fair Dismissal Code (only relevant when the employer is a small business employer); and the dismissal was a case of genuine redundancy. If Fair Work Australia does not dismiss the claim after considering the initial matters, then it will go on to consider the merits of the case. 17
Page 1 and 2: Unfair Dismissal Overview This modu
Page 3 and 4: General Protections The provisions
Page 5 and 6: The qualifying period of employment
Page 7 and 8: whether the dismissal was consisten
Page 9 and 10: Fair Work Australia has discretion
Page 11 and 12: Rights and Responsibilities under t
Page 13 and 14: There are many factors Fair Work Au
Page 15: Can I seek the other party to pay m
Page 19 and 20: The Minister for Employment and Wor
Page 21 and 22: The Small Business Fair Dismissal C
Page 23 and 24: d. The employee committed a serious

Unfair Dismissal - RCSA

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