Termination of employment occurs when an employee’s contract of employment with an employer comes to an end. This can happen because of dismissal, resignation or redundancy.
What is unfair dismissal?
An employee is considered unfairly dismissed if the Fair Work Commission (“FWC”) is satisfied that all of the following has taken place:
• The person has been dismissed
• The dismissal was ‘harsh, unjust or unreasonable’
• If the employer is a Small Business, the dismissal has failed to comply with the Small Business Fair Dismissal Code
• The dismissal was not a bona fide redundancy
What is considered ‘harsh, unjust or unreasonable’?
In determining whether the dismissal is ‘harsh, unjust or unreasonable’ the FWC takes in to account a number of factors, such as:
• Whether there was a valid reason for the dismissal
• Whether the employee was notified of the reason and given an opportunity to respond
• If the employer unreasonably refused to allow an employee to have a support person to assist in discussions relating to the dismissal
• Any other factors the FWC deems relevant
A redundancy occurs when an employer either:
• no longer requires an employee’s work to be carried out by anyone, or
• the employer becomes insolvent or bankrupt.
A redundancy is considered bona fide when:
• the ex-employee’s job is no longer required to be done by anyone
• the employer has followed any consultation requirements in the award, enterprise agreement or other registered agreement.
It is not considered a genuine redundancy if the employer:
• still requires someone to do the job, or
• has failed followed the relevant requirements to consult with the employees about redundancy under the award or registered agreement, or
• could have reasonably given the employee another role within the employer’s business or associated entity
When an employer dismisses an employee, they are required to give them notice. The minimum notice period is dependent on:
• the employee’s period of continuous service; or
• if applicable, the minimum period prescribed under an award or registered agreement.
When an employee resigns, they may have to give notice to their employer. The minimum notice required will be set out in the employee’s award, employment contract, enterprise agreement or other registered agreement.
If you need any further information in regards to the above article, give The Quinn Group a call on (02) 9223 9166 or submit an online enquiry.