Unfair Cruel Laws
Who is covered by unfair dismissal laws?
Employees who are earning up to $123,300 excluding superannuation and incentive bonuses or payments (indexed for CPI each year) are covered by unfair dismissal laws. In addition, employees who are covered by awards or enterprise agreements made under the FW Act or its predecessor, irrespective of their earnings, will be covered by the unfair dismissal laws.
This is the case except for:
• Certain casual employees
• Employees who were dismissed during their first six months of employment (or 12 months in the case of stipulated small employers)
• Employees engaged on a specified term contract if the ending of the employment is due to the contract not being renewed at its expiry
• Certain employees engaged …show more content…
under traineeships.
KEY POINTS
If considering dismissing an employee, ask what obligations will impact upon the decision.
Comply with any unfair dismissal laws that apply and any workplace policies, industrial agreements or contractual provisions that may impact upon dismissal or discipline of employees.
Identify any payments the employee is entitled to on ending of the employment.
WHAT DO UNFAIR DISMISSAL LAWS REQUIRE?
Under unfair dismissal laws, an employer cannot dismiss an employee unless they have a valid reason connected with the employee's conduct, capacity or because of a genuine redundancy. In addition, if the dismissal is related to conduct or capacity, it may still be unfair if the employee is not notified of the reason for their dismissal, not given an adequate opportunity to respond to those reasons, not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the hearing or if the dismissal was otherwise procedurally unfair.
A valid reason is one that is sound and defensible and related to the employment.
Except for serious misconduct (eg theft), if dismissing an employee because of inadequate performance or misconduct, an employer may need to establish more than one incident of misconduct or poor performance to justify the dismissal. In addition, the existence of prior warnings about the employee's misconduct or poor performance will normally be necessary in the sense that the employee has been made aware that failure to improve their performance or conduct may jeopardise their ongoing employment.
In the case of the valid reason, employers need to establish the misconduct on the "balance of probabilities". A rigorous investigation of the circumstances is often a key element of satisfying that burden of proof. Employers need to ensure that they have sought and taken into account all relevant evidence and properly tested it and that, prior to any dismissal decision, they have given the employee an opportunity to respond to any allegations against them, including having given them sufficient detail of the matters that may form the basis for dismissal.
An employer should also take into account the employee's length of service, employment record and relevant personal circumstances before making the decision to
dismiss.
Employees who are earning up to $123,300 excluding superannuation and incentive bonuses or payments (indexed for CPI each year) are covered by unfair dismissal laws. In addition, employees who are covered by awards or enterprise agreements made under the FW Act or its predecessor, irrespective of their earnings, will be covered by the unfair dismissal laws.
This is the case except for:
• Certain casual employees
• Employees who were dismissed during their first six months of employment (or 12 months in the case of stipulated small employers)
• Employees engaged on a specified term contract if the ending of the employment is due to the contract not being renewed at its expiry
• Certain employees engaged …show more content…
under traineeships.
KEY POINTS
If considering dismissing an employee, ask what obligations will impact upon the decision.
Comply with any unfair dismissal laws that apply and any workplace policies, industrial agreements or contractual provisions that may impact upon dismissal or discipline of employees.
Identify any payments the employee is entitled to on ending of the employment.
WHAT DO UNFAIR DISMISSAL LAWS REQUIRE?
Under unfair dismissal laws, an employer cannot dismiss an employee unless they have a valid reason connected with the employee's conduct, capacity or because of a genuine redundancy. In addition, if the dismissal is related to conduct or capacity, it may still be unfair if the employee is not notified of the reason for their dismissal, not given an adequate opportunity to respond to those reasons, not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the hearing or if the dismissal was otherwise procedurally unfair.
A valid reason is one that is sound and defensible and related to the employment.
Except for serious misconduct (eg theft), if dismissing an employee because of inadequate performance or misconduct, an employer may need to establish more than one incident of misconduct or poor performance to justify the dismissal. In addition, the existence of prior warnings about the employee's misconduct or poor performance will normally be necessary in the sense that the employee has been made aware that failure to improve their performance or conduct may jeopardise their ongoing employment.
In the case of the valid reason, employers need to establish the misconduct on the "balance of probabilities". A rigorous investigation of the circumstances is often a key element of satisfying that burden of proof. Employers need to ensure that they have sought and taken into account all relevant evidence and properly tested it and that, prior to any dismissal decision, they have given the employee an opportunity to respond to any allegations against them, including having given them sufficient detail of the matters that may form the basis for dismissal.
An employer should also take into account the employee's length of service, employment record and relevant personal circumstances before making the decision to
dismiss.