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Justice and fairness applies equally to every body

Fair Work - Will it work? it depends on how efficient the new Fair Work Australia body is. It runs the risk like any other large government department of getting lost within itself.

The issue of cost is another, how much will it cost for a employee to take a unfair dismissal or industrial relations matter through the system, how much will the employer have to spend on defending the claims.

The notion that the new industrial relations system will be fairer, or what is really proposed is a simplified present Australian Industrial Relations Commission is going to be fairer to both the employer and the employee remains to be seen.

Proposed new rules under Fair Work Australia

Only those casual employees who have completed the relevant minimum qualifying period (12 months regular and systematic employment in a small business or 6 months in a larger one) will be able to make an unfair dismissal claim.

Other exclusions from unfair dismissal remedies include seasonal employment and specified-task employment at the end of which an employee’s work is no longer required. The ending of employment that was for a fixed period or task is not considered to be a dismissal. Simple, non-legalistic processes where a claim of unfair dismissal is made, a simple, streamlined process will apply for both small and larger businesses.

Unfair dismissal

Unfair dismissal claims must normally be lodged with Fair Work A ustralia within seven days. Fair Work Australia will take a flexible approach in gathering information. It will be able to make initial inquiries and discuss the issues with employers and employees, including in informal conferences at mutually agreed locations, with a view to achieving a mediated resolution.

The new system will be non-legalistic, the aim being to keep lawyers and contingency fee agents out of the process. Legal representation will be allowed only in exceptional circumstances where Fair Work Australia determines that a party is unable to represent him or herself. Decisions will be able to be made without the need for a full public hearing. Public hearings will only occur where the case involves particularly complex issues. Legal representation may be allowed at this stage. A remedy of reinstatement or capped compensation.

Reinstatement will be the remedy unless it is not in the interests of either of the parties. Where reinstatement is not feasible, compensation may be ordered but a cap on compensation will apply. The maximum compensation will be six months’ pay, but normally compensation will be well beneath the cap. Employers will no longer need to pay ‘go away’ money, since the process will be quick, simple and informal.

Small Business Fair Dismissal Code Application The Fair Dismissal Code applies to small business employers with fewer than 15 employees. Each full time, part time and long term casual employee will count as one employee.

A long term casual employee is one who has been employed on a regular and systematic basis for at least 12 months. Small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer follows the Code then the dismissal will be deemed to be fair.

Redundancy Employees who have been dismissed because of a business downturn or their position is no longer needed cannot bring a claim for unfair dismissal. However, the redundancy needs to be genuine. Re-filling the position with a new employee is not a genuine redundancy.

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 Dismissals
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 either 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 may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

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