Preparing for the return of unfair dismissal laws

The new unfair dismissal laws took effect from 1 July 2009 and have reinstated a legal remedy for a substantial portion of the workforce who had been unable to access unfair dismissal applications from 27 March 2006.

Key features of the new unfair dismissal laws include:

• Introduction of a Small Business Fair Dismissal Code, which will operate as a defence to a claim of unfair dismissal for small employers

• Fair Work Australia operating as an investigator and inquisitor, replacing the current conciliation and arbitration functions of the Australian Industrial Relations Commission

• The continuation of unlawful termination grounds with the new inclusion of an ‘adverse action’ claim that may be made by employees who believe they have been subject to discrimination

For further detail on the return of the unfair dismissal laws, click here

Preparing for the return of the unfair dismissal laws

In ensuring compliance with the FW Act, employers are encouraged to:

1. Review all termination of employment policies and procedures and ensure that all managers and supervisors with ‘hiring and firing’ capabilities understand the new laws
2. Incorporate the Small Business Fair Dismissal Code into your policies and procedures, whether or not you are a small business, and follow the Code accordingly
3. Review all equal opportunity and discrimination policies and procedures and undertake global training to ensure that all managers and employees understand what discrimination is and the process to be followed where discrimination is alleged to have occurred
4. Implement processes to ensure all new employees are reviewed periodically throughout their probation period, or at least prior to the expiration of their probation period, to determine whether employment should continue
5. Maintain clear records of all discussions held with any employee with respect to their conduct or performance including the date, the time and any witnesses. While you may not believe that an issue will escalate at the time, such records may form crucial evidence down the track
6. Understand the difference between unfair dismissal and unlawful termination
7. Always seek advice prior to any termination of employment irrespective of how clear cut a situation may appear
8. Understand what constitutes a ‘genuine redundancy’ as this has a specific meaning under the FW Act (eg. requires an employer to consider redeployment including in associated entities)
9. Ensure employees are not refused the ability to be accompanied by a support person in any meeting related to the termination, or possible termination, of their employment

Author: Katrina Sweatman