How to make sure your business is prepared for the new Fair Work Act.
click here to get a free trailDear Reader,
The decision to dismiss an employee – for whatever reason – is a big deal.
It pays to make absolutely sure you have all your bases covered before you take the step of terminating someone’s employment.
Why? Because as a number of recent cases have shown, Fair Work Australia will have no qualms about reinstating a dismissed employee if they believe you terminated their employment unfairly.
If Fair Work Australia (FWA) is satisfied that you dismissed an employee for reasons of “genuine redundancy”, then the dismissed employee cannot claim unfair dismissal under the Fair Work Act.
In order to establish grounds of genuine redundancy, you must prove three things.
1. Firstly, you must prove that you dismissed the employee because you no longer required the person’s job to be performed by anyone due to changes in the operational requirements of your business.
A recent unfair dismissal decision makes it clear that if you want to enforce a policy that restricts employees’ activities outside working hours, you will need to show that the policy has a necessary connection to your workplace (Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd. AIRC893. 16/10/09).
The decision ruled that it was fair for a brewery to dismiss a worker who had committed a drink-driving offence after hours.
Why? Because the brewery company maintained a responsible drinking policy, which prohibited the use of alcohol use outside of work hours as it would harm the company’s corporate reputation. The worker was sacked because the court case over the drink driving offence was likely to be reported in the media.
Dear Reader,
Documenting every workplace process can seem tedious to say the least.
And yes, you may think it’s a waste of your very valuable time.
But believe me; having thorough paperwork is worth its weight in gold if an employee makes a claim against you.
Take an unfair dismissal case for example.
In this week’s Workplace Bulletin:
Dear Reader,
Tomorrow, on Wednesday July 1 2009, a number of major components of the new Fair Work Act will take effect.
From tomorrow:
1. The Fair Work Ombudsman will take over from the Workplace Ombudsman.
2. The changes to Unfair Dismissal laws will take effect.
3. The changes to Industrial Action legislation will take effect.
4. The changes to Agreement Making will take effect.
5. The changes to Stand Down laws will take effect.
6. The changes to Transfer of Business laws will take effect.
7. The changes to Right of Entry laws will take effect.
These laws will all take effect TOMORROW, so make sure you don’t get caught out!
Remember, there are still a number of important parts of the Fair Work Act that will not commence until 1 January 2010, namely:
In this week’s Workplace Bulletin:
Dear Reader,
Unfair dismissal laws give dismissed employees the right to seek redress against you if they believe that your termination of them was harsh, unjust or unreasonable in any way.
For example, if you dismiss a long-time employee for being late on several occasions, the dismissal may be deemed unfair on the grounds that the employee had previously provided you with years of continuous, unblemished service. Essentially, an employee can bring an unfair dismissal claim against you for a wide variety of reasons.
The legal grounds for an unlawful termination claim, however, are much more specific.
In addition to unfair dismissal laws, the WR Act also contains a provision that prohibits you from terminating employment for specific reasons.
These reasons are:
If you contravene this provision by dismissing an employee for any of the above reasons (or reasons that include these reasons), you could be held liable for unlawful termination.
Workplace Helpdesk: Cashing Out Long Service Leave
Answered by Charles Power, editor-in-chief, Employment Law Practical Handbook.
Q: I am an employer in NSW. One of my employees is resigning and wishes to cash out her unused long service leave. Can I do this?
A: No. Because you are an employer in NSW, you cannot cash out annual leave under any circumstances. This rule also applies to Victorian employers. However, in QLD, SA, WA and Tasmania, employers may cash out long service leave by agreement with their employees.
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