Termination Tips and Traps

Termination Tips and Traps

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  Termination: Tips and Traps By Andrew Bland August 2012 The information in this presentation is general in nature and does not constitute formal legal advice. www.blandslaw.com.au
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   Unfair Dismissal  Genuine Redundancy  Performance Management  Adverse Action  Discrimination  Risk Management www.blandslaw.com.au
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   TheFair WorkAct 2009 (Cth), section 385, provides that a person has been unfairly dismissed if:  The person has been dismissed; and  The dismissal was harsh, unjust or unreasonable; and  The dismissal was not consistent with the Small Business Fair Dismissal Code; and  The dismissal was not a case of genuine redundancy. www.blandslaw.com.au
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   Harsh, unjustor unreasonable • Communication medium (eg text messaging) • Support person • Right of reply  Small Business Code • Fewer than 15 employees • One warning • Contrast with three strikes policy (larger businesses) www.blandslaw.com.au
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   Must relateto a role and not a person  Must not be related to any performance issues  Covered by the National Employment Standards (NES) – larger businesses  Redundancy may occur if: • the job someone has been doing is replaced due to the employer introducing new technology (i.e. it can be done by a machine) • business slows down due to lower sales or production • the business relocates • a merger or takeover happens • the business restructures or reorganises.  Processes to follow • Eg Alternative deployment • Applicable payouts – will depend on business size; duration of employment etc www.blandslaw.com.au
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   Importance of a rigorous and regular performance management regime;  Being consistent when dealing with analogous circumstances;  Allowing access to a witness or support person at any disciplinary meetings;  Adopting a suitable forum for discussion; and  Affording the opportunity of a right of reply.  Note: situations of serious and willful misconduct. www.blandslaw.com.au
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  Definition: Action takenagainst employees, independent contractors (and their employees) or prospective employees because the employee has or exercises a workplace right • Note the inclusion of prospective employees. Some examples of workplace rights: • An employee’s right to be absent from work during parental leave • Making, varying or terminating an enterprise agreement • A complaint under an internal bullying policy. Reversal of Proof Increase in number of claims coming before FWA  FWA quarterly statistics: in the 3 months till June 2012, over 700 general protections claims. www.blandslaw.com.au
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   Discrimination (section 351) o Prohibition against adverse action on grounds of race, sex, colour, sexual preference, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. o Consider also any applicable state and federal anti- discrimination legislation.  Terminating sick or injured employees o If requirements are met, employees may not be dismissed for at least three months if on sick leave or workers compensation, potentially longer under some State/ Territory legislation. www.blandslaw.com.au
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   What stepscan you take to minimise or mitigate your risk in termination cases? • Importance of a clear and well kept written record • Support person/ witness • Regular performance reviews  Consider frequent and informal progress updates • Good employment contracts • Company policies:  Cover all salient areas and are cross-referenced  Regular training around these policies  Communication to staff www.blandslaw.com.au
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   BlandsLaw was established in 2003 and is located in North Ryde, NSW.  Core expertise: • Industrial Relations / Employment law  Additional expertise: • All aspects of general commercial law; • Social media law.  For more information, contact: Andrew Bland [email protected] @irlawyeraus Ph. (02) 9805 5600 www.blandslaw.com.au