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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.
ABSOLUTELY NOTHING ON THIS SITE CONSTITUTES LEGAL ADVICE. A WHOLE NEW APPROACH PTY LTD IS NOT A LAW FIRM AND WE ARE NOT SOLICITORS. 
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