By Mike Fitz Gerald on December 3, 2012
The Fair Work Act 2009 sets out the Small Business Fair Dismissal Code which defines the circumstances where summary dismissal is warranted, the steps an employer should take in respect to the performance management of an under performing employee and most importantly a checklist to follow in dealing with the dismissal of an employee. See below.
The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
In the case of small businesses and unfair dismissal claims, FWA is required to consider whether the fair dismissal code was complied with as a preliminary issue and if the code was followed the claim will be dismissed. If the code was not followed FWA will continue to consider whether the dismissal was harsh, unjust or unreasonable. The remedies for unfair dismissal in the case of small business are the same as for large business. Small businesses should ensure that they follow the fair dismissal code checklist.
Posted in Disciplinary Processes, Fair Work Act, Policy Development, Trouble(shoot) Empoyees |
By Mike Fitz Gerald on December 3, 2012
From a recent seminar that I attended at Jackson MacDonald Lawyers I learned that as a rule of thumb for policy writers – make sure that you do not use “promissory language” in your policy writing where you do not intend creating an obligation on the employer to provide additional benefits to its employees: and remember not everything needs to be in policy form, there is plenty of room for “guidelines” that set out practices and procedures guidelines for managers to follow (for example in the disciplinary and performance management processes). Call me any time 24/seven if you would like to discuss this further +61419907443.
Posted in Disciplinary Processes, Employee Benefits, Policy Development | Tagged Discipline, Dismissal |
By Mike Fitz Gerald on November 2, 2010
The following is an executive summary of the changes that you need to be aware of under the Fair Work Act 2009.
What you need to know after 1 July 2009.
From July 1, 2009, Fair Work Australia (FWA) took over from the Australian Industrial Relations Commission (AIRC) as the employment law watchdog with certain powers to regulate the relationships between employers and employees. Continue reading “THE FAIR WORK ACT 2009 – WHAT DOES IT MEAN FOR EMPLOYERS”
Posted in Fair Work Act, Legislation, Trouble(shoot) Empoyees | Tagged Fair Work Act, Modern Award, National System Employers |
By Mike Fitz Gerald on September 23, 2010
For those of you that have some spare time to read I believe that this is a ripping yarn! Continue reading ““The Walrus & the Carpenter” by Lewis Carrol”
Posted in Uncategorized | Tagged Poetry, Relaxation |
By Mike Fitz Gerald on September 22, 2010
We are often asked whether bereavement leave is an entitlement that accrues from year to year if it is not used by an employee in any given year. Also our clients ask if bereavement leave entitlements apply to part timers and casuals in the same way as it applies to full time employees. Another question that often arises is what is the difference between compassionate leave and bereavement leave. Find the answers to these and more questions on our Bulletin Board.
Posted in Award Interpretations, Employee Benefits |
By Mike Fitz Gerald on September 22, 2010
In certain circumstances in Local Government in Western Australia, employees have the right to portability of unused sick leave entitlements and unused long service leave entitlements. The entitlement to portability of long service leave comes from the Local Government (Long Service Leave) Regulations and has general application across all Local Governments in WA. The entitlement to portability of sick leave arises from the two main Local Government Awards, the Local Government Officers’ (WA) Award 1999 and the Municipal Employees (WA) Award 1999, which may not have such wide application across Local Government in WA, depending upon whether the Local Government in question is a National System Employer for the purposes of the Fair Work Act 2009. Continue reading “Portability of Leave Entitlements (Local Government)”
Posted in Award Interpretations, Employee Benefits | Tagged Continuity of Service, Leave Entitlements, National System Employers, Portability of Leave |
By Mike Fitz Gerald on September 21, 2010
Employees are often called upon to relieve in a higher position than their substantive position in an organization when their superior officers are absent from the workplace for any reason. This situation always triggers a question in the relieving employee’s mind “I wonder if I get paid extra for relieving in my Boss’s position whilst he is away?” Different Awards contain differing provisions in respect to the payment of Higher Duties Allowance in these circumstances. Continue reading “Higher Duties Allowance (Local Government)”
Posted in Award Interpretations, Employee Benefits | Tagged Allowances, Higher Duties, Relieving |
By Mike Fitz Gerald on September 21, 2010
There are many and varied reasons why employees are required to work overtime at all different times of the day and night. A lot of overtime is worked at times when employees should normally be asleep. Sometimes employees are required to continue working after their usual knock-off time or to come in early to work and then work on through the day. Sometimes employees are recalled to the workplace to perform a particular task outside of their ordinary hours and after they have left the workplace. Depending upon when overtime is performed and whether it is performed contiguously with an employee’s ordinary hours, the amount of overtime payment can vary considerably. Continue reading “Recall to Work – Overtime”
Posted in Award Interpretations, Employee Benefits | Tagged Callouts, Overtime Payments, Penalty Rates, Recall to Work |
By Mike Fitz Gerald on September 16, 2010
Kirsty Fraser-Kirk’s claim for $37.0 million in punitive damages against the giant retailer, David Jones and their ex CEO, Mark McInnes, has served to sharpen our focus on the seriousness of sexual harassment in the workplace. We propose to run a series of articles on this and other subjects that impact the employer/employee relationship, however, we do not intend to reinvent the wheel and recommend that you read an authoritative article on this case by Alexandra Marriott of the Victorian Employers Chamber of Commerce and Industry (VECCI).
Add your comments or ask questions by posting your reply below.
Or you may choose to join our discussion on our Bulletin Board.
Posted in Sexual Harassment | Tagged Damages, Sexual Harasssment |
By Mike Fitz Gerald on September 16, 2010
We regularly take calls from clients seeking advice on how to best manage difficult situations where an employee is performing poorly or has engaged in serious misconduct. These situations require the employer to confront the issues with the employee concerned and to ensure that their treatment of the employee concerned is such that the employee is afforded procedural fairness and natural justice and that the employers do not set themselves up for a successful unfair dismissal claim against them.
Whilst disciplinary procedures are stressful for both the employer and the employee, they are not overly complex and so we have set out two fairly simple articles Continue reading “Managing Problem Employees in the Workplace (Warnings Dismissal & Summary Dismissal)”
Posted in Disciplinary Processes, Trouble(shoot) Empoyees | Tagged Discipline, Dismissal, Warnings |