Unfair Dismissal - RCSA

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making a false statement in a statutory declaration is an offence which may result in fines, imprisonment, or both. Key Points • There are certain steps that an employer can follow to minimise exposure to an unfair dismissal claim, such as notifying employees of any problems relating to their conduct and allowing them to respond. • Under the Fair Work Act 2009, a person who has been dismissed has 14 days to make an unfair dismissal application. • 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. Fair Work Australia can conduct a public hearing if they consider it would be the most effective and efficient way of dealing with the 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. • The Fair Work Act 2009 establishes the Small Business Fair Dismissal Code. If a small business employer complies with the Code, the dismissal will be considered fair. • If there are contested facts in relation to whether the dismissal was consistent with the Small Business Fair Dismissal Code, Fair Work Australia will gather further information by holding a conference or hearing. • The Small Business Fair Dismissal code is not a compulsory code. For further information Fair Work Act 2009, Explanatory Memorandum to the Fair Work Bill, and the Transitional and Consequential Bill: http://www.workplace.gov.au/workplace/Publications/Legislation/FairWorkBill.htm 'Fact Sheets' on the new industrial relations system: http://www.deewr.gov.au/WorkplaceRelations/NewWorkplaceRelations/Pages/FactSheets. aspx 20
The Small Business Fair Dismissal Code Summary Dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be considered fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. Other Dismissal In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations. Procedural Matters In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. 21
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 and 16: Can I seek the other party to pay m
Page 17 and 18: Rights and Responsibilities under t
Page 19: The Minister for Employment and Wor
Page 23 and 24: d. The employee committed a serious

Unfair Dismissal - RCSA

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