Unfair Dismissal Changes for Employers with Less Than 15 Employees
You are here:As with employers with 15 to 100 employees, the area of unfair dismissals is being re-regulated for smaller employers. However, they will have a slightly different regime to comply with, compared with larger employers.
Firstly, employees will have to had served a 12 month qualifying period of employment with the employer.
Secondly, "to dismiss someone fairly after 12 months the employer will have to comply with a simple and short six-paragraph Fair Dismissal Code for Small Business", the Deputy Prime Minister announced when releasing details of the new legislation. The Code is available by clicking here.
For under-performing employees, the Code requires the employer to give the employee a valid reason, based on the employee’s conduct or capacity to do the job, why the employee is at risk of being dismissed and a reasonable chance to rectify the problem.
Multiple warnings are not required. It is desirable, but not necessary, for a warning to be in writing.
Instant Dismissal for Serious Misconduct
The Code says - "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 suffi ciently 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 suffi cient, 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."
ER Strategies Comment -
Although we are assured that simple compliance with the Fair Dismissal Code will avoid an unfair dismissal case, Fair Work Australia (the body which will replace the Australian Industrial Relations Commission and other related government bodies) will still want to satisfy itself that this has in fact occurred.
With proposed restrictions on representation, we feel it will throw more weight on a small employer (compared with what existed before Work Choices removed unfair dismissals for small businesses), to ensure that they follow a fair dismissal process.
We are considering the idea of assisting our Employer Protection Advisory Service (EPAS) clients by becoming involved in conducting mini disciplinary tribunals on our clients behalf before they terminate employees. This way we can propoerly advise our client on whether they have sufficient grounds on which to dismiss a troublesome employee.
Use the Comment facility below to tell us whether you think this would work. Would a small employer be able to wait long the few days required for this to occur?
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