Ending the Employment Relationship
Another important industrial relations change is heading our way.
Unfair dismissal is returning from 1 July 2009 for all Employers in the federal industrial relations system.
How your organisation handles the process and decision making surrounding terminating an employee's employment is influenced by the size of your organisation as well as your capacity to engage expert assistance.
For small business entities engaging less than 15 employees (not including casuals) the process must be conducted in accordance with the Small Business Fair Dismissal Code. Unsatisfactory departure from this standard may leave your organisation exposed to a finding by the Workplace Authority that the termination was harsh, unjust or unreasonable.
Unfair Dismissal relates to two perspectives:
a) From a procedural perspective were the required and necessary processes undertaken?
b) From a substantive perspective, was terminating the employee's employment the right choice and/or only choice?
Getting this wrong is going to be costly for SMEs going forward.
The Workplace Authority, soon to be called Fair Work Australia will be the department charged with the responsibility of adjudicating applications for unfair dismissal. Unlike historical processes, the Department representatives have the power to listen to the parties, consider the circumstances and make a decision. Such decisions can be to reinstate the employee or to pay compensation.
It is unlikely that many cases will go to an arbitrated hearing. Most will stop short of that with the Employer opting to sign a deed and pay out compensation.
The Department has the power to ask the opinion of other employees at the workplace .
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