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In the past, employers running small businesses (keeping 15 employees or less) could pick and chop workers as they liked. They were not subject to any explanation. This scene has drastically changed since July 2009, following the enactment of Small Business Fair Dismissal Code. Now, employees can be sacked only in adherence with rules and strictures, failure in following the process is counted as unfair dismissal. Here is more.
Fair Work Australia takes action
Fair Work Australia (FWA) has systematized the whole system of petitions and corrections. If an employee feels he has been unreasonably or harshly sacked and is a victim of unfair dismissal, he can apply to FWA within 21 days of being dismissed. The commission analyses the reasons of his dismissal, hears both his and the employer’s versions and accordingly takes decision.
What is unfair dismissal?
The employee can feel being hard-done at if they are sacked, even if they have not committed theft, violence, fraud or any related nuisance. Add to that, they don’t fall under the ambit of genuine redundancy and have not been told the main reason of their dismissal. They may also feel piqued if they don’t get adequate time to rectify mistakes and enhance their performance and skills.
Some get covered; some don’t
All employees of Victoria, Northern Territory and Australia Capital Territory and private employees of New South Wales, Queensland, Tasmania and South Australia get the cover. The sole provision is that employees of small businesses should have worked for a year or more and those of large businesses should have completed 6 months.
Contractors, object-specific employees, trainees, demoted employees without reduction in salary and perks and those who have voluntarily resigned are left out of the cover. If the employee earns more than $1, 29,300 annually, he should be covered by an award or an enterprise agreement.
How does the Commission act?
The Commission addresses the exact scope and facts of dismissal, the prevailing atmosphere in the company, HR strength or lack of it, clarity of job profile of the concerned employee and whether he has got enough opportunity to rectify his mistakes and respond to the issue. In quite a few cases, it appoints a conciliator to help settle the issue out of court.
Respite for the employer
In case the employer feels that the employee is standing on slippery grounds, he can object to the employee’s application of unfair dismissal within 7 days of the application being forwarded to FWA. If he has dismissed his employee on grounds other than theft, health issues, violence and fraud, the employer needs to have written statements and proofs to back his claim.
Both the employer and employee are well-advised to seek help from lawyers. You can approach us at Caputo lawyers and get apt and precise counsel from our team of experienced lawyers.
Do you think both or either parties (employer and employee) can take advantage of the Small Business Fair Dismissal Code and how?