Summary of Workplace Relations in Australia III

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6. Dismissal 

6.1     Unfair dismissal jurisdiction
 
(a)       The FW Act provides a statutory scheme to allow dismissed employees to seek remedies on grounds that the dismissal was “harsh, unjust or unreasonable”. The unfair dismissal scheme can be accessed by employees with more than six months’ service and the employee’s annual earnings are below the high income threshold (for the 2015-2016 year this was $136,700). If an employee’s employment is covered by a modern award or by an enterprise agreement they will also be eligible to access the unfair dismissal scheme.
 
(b)      An  unfair  dismissal  application  must  be  lodged  by  the  employee  with  the  Fair  Work
Commission (FWC) within 21 days of dismissal.
 
(c)       Employees will not be entitled to a remedy in the unfair dismissal jurisdiction if:   
  
       (i)        the application is filed outside the 21 day time period;
       (ii)       the dismissal is a genuine redundancy (requirements for genuine redundancy are set out 2.5(c) above);
       (iii)     the employee is a casual and is not employed on a regular and systematic basis;
       (iv)      the employee was “not dismissed” (ie the employee resigned or the employment contract was for a fixed term and ceased by the effluxion of time).止)。
 
However, there are various exceptions to each of the above jurisdictional exclusions.
 
(d)      An employee will be successful in an unfair dismissal application if the dismissal was “harsh unjust or unreasonable”. A dismissal will be “harsh, unjust or unreasonable” if there was not a valid reason for the dismissal or the employer did not follow certain procedural requirements regarding fairness.  For example, for a dismissal relating to performance, the employer must give the employee the opportunity to improve, such as through performance management or further training. Alternatively, if the dismissal is due to a misconduct issue, such as being late, the employer is required to show that the employee was warned (usually by formal written warning) about their conduct. If an employer unreasonably refuses a request by the employee to have a support person attend a meeting or does not give the employee an opportunity to respond to the reason for dismissal before the decision to terminate is made, then the employer dismissal may be considered “harsh, unjust or unreasonable” notwithstanding the valid reason, due to failure to comply with the procedural requirements regarding fairness.
 
(e)      If the dismissal is found to be “harsh, unjust or unreasonable”, then the primary remedy in the unfair dismissal jurisdiction is reinstatement. This means the FWC can order that the employee be returned to their position with the employer with back pay for the period of time they were not employed. Compensation will only be ordered instead of reinstatement in circumstances where the FWC considered reinstatement to be inappropriate. Compensation is capped at six months’ pay.
 
6.2     General protections claims
 
(a)       The FW Act also provides a general protections scheme that protects employees from their employers taking adverse action (including dismissal) against them on prohibited grounds. Prohibited grounds include discrimination (such as race, sex, pregnancy), lawful industrial action and for exercising a workplace right (such as making a complaint or inquiry in relation to their employment, ie. taking personal leave). Other forms of adverse action include altering the position of the employee to the employee's prejudice (such as a demotion) or treating the employee different to other employees.
 
(b)      The general protections provision also apply to prospective employees.
 
(c)       Contravention of these provisions will render employers liable to the imposition of a penalty up to $54,000 ($10,800 for an individual) for a corporation per breach as well as orders to remedy the contravention through reinstatement, compensation or both.
 
(d)      Unlike unfair dismissal laws, there is no qualifying period of service for an employee to make a general protections claim. In addition, there is no remuneration threshold. General protections claims also impose a reverse onus, which means the evidentiary burden is on the employer to show that the adverse action was not taken for or did not include, a prohibited ground.
 
(e)      A dismissal-related general protections claim must be lodged by the employee with the FWC within 21 days of dismissal. If the claim is not dismissal related, the employee will have six years from the date of the adverse action to file a claim. 

7.Long service leave
(a)       In Victoria, an employee becomes eligible to take long service leave after 10 years of continuous service with the same or related employer.
 
(b)      Full time, part time, casual and seasonal employees all accrue long service leave. However, the Victorian Long Service Leave Act does not apply to employees who are covered by a federal award or workplace agreement, where that award or agreement contains its own long service leave provisions.
 
(c)       The basic measure of pay used to calculate long service leave is ‘ordinary pay’, which is the weekly remuneration received by an employee for working their ordinary hours of work. Where an employee’s ‘ordinary pay’ is variable (e.g. casual workers), then an average of earnings received by the employee over a specified period is generally calculated for the purposes of long service leave.
 
(d)      An employee ceasing employment after at least seven years of continuous employment with one employer is entitled to be paid out their accrued long service leave entitlement regardless of the reason for termination of the employment. 

Editorial:Charles Power, Lauren Drummond
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Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

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Stephen Trew, Managing Partner, Sydney
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E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Brisbane
Paul Venus, Managing Partner, Brisbane
T: +61 7 3135 0613
E: paul.venus@holdingredlich.com

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