termination tips and traps

www.blandslaw.com.au

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.


Presentation Overview

Unfair Dismissal

Genuine Redundancy

Performance Management

Adverse Action

Discrimination

Risk Management


Unfair Dismissal The Fair Work Act 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.


Unfair Dismissal cont. Harsh, unjust or 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)


Genuine Redundancy Must relate to 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


Performance Management 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.


Adverse ActionDefinition: Action taken against 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.


Discrimination 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 employeeso 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.


Risk Management What steps can 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


BlandsLaw 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 [email protected]@irlawyerausPh. (02) 9805 5600

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