Termination of employment, under any circumstances, is a difficult situation for a business owner. A key aspect we often struggle with is to understand the legal implications of the dismissal process.
Unfair Dismissal case for reflection: www.fwc.gov.au/decisionssigned/html/2013fwc501.htm
In Jan 2013, the Fair Work Commission (FWC) found Dolina Fashion Group had unfairly dismissed Danae Moumtzis, an employee of 17 years.
The Commission’s decision was based on the following factors:
The dismissed employee was originally given five weeks' pay in lieu following her termination, but FWC ordered payment of 22 weeks' salary, given she did not wish to return to the company.
This is a straightforward case with very clear breaches of the Fair Work Act 2009 but it highlights several simple yet important aspects that should be taken into consideration by business owners.
In this article I have addressed five key elements of employment law that business owners need to be aware of.
Can any employee be eligible to make an unfair dismissal remedy application?
No – in order to lodge an application, an employee should have completed six months of employment with an employer who employs 15 or more employees or have completed one year of employment with an employer who employs less than 15 employees.
Is there a timeframe for an employee to lodge an unfair dismissal remedy application?
Yes, If the employee is deemed to be eligible to make this application they should lodge it within 21 days of the dismissal coming into effect.
What are the possible remedies for unfair dismissal?
If the FWC is satisfied that an employee was unfairly dismissed, it may order the employee's reinstatement into their original role together with continuity of service and payment of lost remuneration, or the payment of compensation (by the former employer) to the employee if the FWC is satisfied that reinstatement is inappropriate.
As an employer can you object to the unfair dismissal remedy application?
Yes - you can object to an application on the basis that the applicant was not dismissed under unfair conditions or that the application is past its “lodge-by” date. Alternatively, if warranted, an appeal can be lodged on the basis that the application was made on frivolous or vexatious grounds.
Termination of employment is indeed a very big challenge in a workplace and it is important to have your process and documents in place before you implement it.
If you’d like to learn more about this issue, or receive advice on preparing documents such as objections or submissions related to termination of employment, please give us a call today on +03 9685 7578.
Fair Work Act 2009 (the FWA)
Fair Work Commission website : www.fwc.gov.au/decisionssigned/html/2013fwc501.htm