In Accordance To Employment Law In NSWAustralia

1 BACKGROUND

In December 2009, the New South Wales (“NSW”) Government announced that NSW will be joining the National Industrial Relations System from 1 January 2010 and that the Commonwealth’s Fair Work Act 2009 will cover every private sector employer and employee in NSW. This means that all employers and employees governed by the national system have the same employment rights and obligations irrespective of their state.

The Fair Work Act 2009 (“FWA”) repealed the Workplace Relations Act 1996. The postulates of FWA and the Fair Work Regulations apply to all corporations and businesses in the National Workplace Relations System. These include:

New unfair dismissal laws;

Formation of new national agencies like Fair Work Australia, Fair Work Ombudsman, Fair Work Divisions of the Federal Court and the Federal Magistrates Court which replaced the Australian Industrial Relations Commission, the Workplace Authority and the Workplace Ombudsman;

New enterprise agreement options;

Good-faith bargaining requirements;

Transfer of business laws;

New union right of entry laws.

2 TERMINATION OF EMPLOYMENT BY AN EMPLOYER

According to the Fair Work Act 2009, it is lawful for an employer to terminate an employment contract if it is a genuine redundancy or if the termination is not harsh, unjust or unreasonable or if the termination is in accordance to the Small Business Fair Dismissal Code.

2.1 Fair Dismissal

An employer may also terminate the employment contract through the following ways:

Summary Dismissal:

Summary dismissal is the instant dismissal or on the spot dismissal by the employer for an extremely serious misconduct done by an employee.

Dismissal in Lieu Of Notice:

The employer must have a valid reason for dismissing the employee including poor performance and gross misconduct on part of the employee. The employer is required to give a written notice along with the notice period stated in the employment agreement.

Under the National Employment Standards an employer needs to provide the following notice period to terminate the employment of a permanent employee:

In case, the employee is over 45 years old and has completed at least 2 years of continuous service with the employer, he is entitled to have an extra week of notice period.

Redundancy:

The position of an employee may become redundant due to substitution of the work done by him with the use of advanced technology or restructuring of the work profile. A compensatory amount needs to be paid to the employee in the form of Redundancy severance amounts. The following table sets out the main Federal Award and NSW state provisions:

Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code applies to small business employers in the national workplace relations system. A small business employer is defined as someone whose employ strength is less than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis.

2.2  Unfair Dismissal

According to the Fair Work Act 2009, an employee has been unfairly terminated if Fair Work Australia finds that the termination was harsh, unjust and unreasonable or if the termination was not a case of genuine redundancy.

In case of an unfair termination of an employee by the employer, the employee should speak to an unfair dismissal lawyer and is eligible to lodge an unfair dismissal claim and the matter can be heard by the NSW Industrial Relations Commission. There are both federal and state laws governing unfair dismissals. The NSW referral bill was passed in NSW Parliament on 1 December 2009 and The Commonwealth Parliament voted to pass the State Referrals bill on 2 December 2009.

Under the Fair Dismissal Code, employees of small business employers cannot make a claim for unfair termination in the first 12 months after being appointed. Employees of larger business employers are able to make a claim for unfair termination after completion of 6 months of employment.

Unlawful Termination:

In workplace and employment law, an employment contract is unlawfully terminated when it is terminated on the following grounds:

A person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, *Pregnancy, religion, political opinion, national extraction or social origin excepting due to the specific requirements of the job profile;

Temporary absence from work because of illness or injury

Membership of any trade union or participation in trade union activities outside working hours or, with the employer’s consent, *During working hours

Non-membership of a trade union

Seeking office as, or acting as, a representative of employees

Being absent from work during maternity leave or other parental leave

Temporary absence from work to engage in a voluntary emergency management activity

Filing a complaint, or participating in proceedings against an employer.

3 REMEDIES TO AVOID UNFAIR DISMISSAL CLAIMS

3.1 Usage of Job Objectives

If the employer lists the duties, responsibilities and key competencies of a role at the outset of employment, the employer will have a proper basis to establish a performance management process. If it becomes necessary to dismiss an employee, the list or job description will better equip the employer to dismiss the employee on the grounds that they cannot perform their duties properly.

3.2 Probationary Period

Probationary periods serve as a useful human resource management tool by putting the employee on notice that their suitability for the role is to be assessed in the initial period of their employment.

3.3 Performance Guidelines

If the employers have proper procedures in place for dealing with performance issues, the employers will be better able to ensure that their managers follow proper processes.

3.4 Employee Grievances

Most unfair dismissal claims come from a genuine grievance held by the terminated employee about their treatment. If the employer takes steps to address that sense of grievance prior to the employee leaving the company, the employers are more likely to avoid legal issues.

3.5 Mutual Separation

Where the grounds for termination are readily established, a mutual separation will give you more security.

Rights of Executives
Employment Contract after the End of your Employment
Employment Contracts & Awards
What to Consider When Hiring a Contractor
Workplace Rights and Adverse Action
Wrongful Dismissal Vs Unfair Dismissal
Executive Employment Agreements rather then Employment Law
Breach Of Employment Contract / Wrongful Dismissal
Breach Of Fiduciary Duties
Changes to Parental Leave
Disciplinary Matters – Deceptive And Misleading Conduct
Employment Law
Employment Rights – Termination Of Employment
Industrial Law
Sexual Harassment Laws

Law & Employers
How to deal with Workplace Bullying
Minimum Wage
Paid Parental Leave
Public Sector Employees
Redundancy & Redundancy Pay
Redundancy of Executive Employees
Restraint of Trade
Small To Medium Businesses And Employment Law
Surveillance in the Workplace
Terminating Employment Contracts
Think twice before Dismissing Employees on Workers’ Compensation
Unfair Dismissal – Not Covered By An Award
When Competitors Steal Staff There Are Legal Consequences
Work Place Safety

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