Termination of Employment
Many difficulties can be encountered when a person's employment is terminated, emphasising the importance of strong firm policies and employment contracts.
At Cosgriff Orchard Legal we can advise employers and employees of their rights and obligations where a person's employment has been, or may be terminated. Where an employee worked for a small business this includes advice regarding the requirements of the Small Business Fair Dismissal Code.
Breach of employment contract
If an employer purports to terminate an employment contract without the termination being in accordance with the terms of such there may be a wrongful dismissal. Situations where a wrongful dismissal may occur include:
• Where an employment contract is terminated and the employee has not been given the required notice period;
• Where an employment contract is terminated without complying with the termination clauses contained therein;
• Where a fixed term contract is terminated before the end date specified;
• Where an employer terminated the contract on the basis of serious misconduct, however there are no reasonable grounds for such termination.
A wrongful termination does not of itself bring the employment contract to an end, but gives the employee the right to terminate the contract.
The remedies available for wrongful dismissal include specific performance or compensation for loss and damage.
Unfair dismissal
The Fair Work Act 2009 contains unfair dismissal provisions. Under the Act 'operational reasons' are no longer a defence to a claim for unfair dismissal. A dismissal will not be unfair if it is a genuine redundancy. There are a number of situations where an employee cannot make an unfair dismissal claim including where:
• The employee has been in the employment for less than 6 months;
• The employee has been in employment for less than 12 months and the employer is a small business employer;
• The dismissal of the employee complies with the Small Business Fair Dismissal Code;
• The employee is genuinely made redundant.
For an unfair dismissal the dismissal must have been harsh, unjust or unreasonable. In considering whether a dismissal was harsh, unjust or unreasonable, FWA must take into account a variety of factors including:
• whether there was a valid reason for the dismissal; and
• whether the person was notified of that reason; and
• whether the person was given an opportunity to respond to that reason; and
• any unreasonable refusal by the employer to allow the person to have a support person present at any discussions relating to dismissal; and
• if the dismissal is related to unsatisfactory performance by the person- whether the person had been warned; and
• whether the size of the employer's enterprise is likely to impact on the procedures followed in effecting the dismissal; and
• the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal; and
• any other matters that FWA considers relevant.
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