presentation

1. Termination:
Tips and Traps
By Andrew Bland August 2012
The information in this presentation is general in nature and does not constitute formal legal advice.
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2.  Unfair Dismissal
 Genuine Redundancy
 Performance Management
 Adverse Action
 Discrimination
 Risk Management
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3.  TheFair Work Act 2009 (Cth), section 385,
provides that a person has been unfairly
dismissed if:
 The person has been dismissed; and
 The dismissal was harsh, unjust or unreasonable; and
 The dismissal was not consistent with the Small
Business Fair Dismissal Code; and
 The dismissal was not a case of genuine redundancy.
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4.  Harsh, unjust or unreasonable
• Communication medium (eg text messaging)
• Support person
• Right of reply
 Small Business Code
• Fewer than 15 employees
• One warning
• Contrast with three strikes policy (larger
businesses)
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5.  Must relate to a role and not a person
 Must not be related to any performance issues
 Covered by the National Employment Standards (NES)
– larger businesses
 Redundancy may occur if:
• the job someone has been doing is replaced due to the employer
introducing new technology (i.e. it can be done by a machine)
• business slows down due to lower sales or production
• the business relocates
• a merger or takeover happens
• the business restructures or reorganises.
 Processes to follow
• Eg Alternative deployment
• Applicable payouts – will depend on business size; duration of
employment etc
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6.  Importance of a rigorous and regular
performance management regime;
 Being consistent when dealing with
analogous circumstances;
 Allowing access to a witness or support
person at any disciplinary meetings;
 Adopting a suitable forum for discussion; and
 Affording the opportunity of a right of reply.
 Note: situations of serious and willful
misconduct.
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7. Definition: Action taken against employees, independent contractors
(and their employees) or prospective employees because the employee
has or exercises a workplace right
• Note the inclusion of prospective employees.
Some examples of workplace rights:
• An employee’s right to be absent from work during parental leave
• Making, varying or terminating an enterprise agreement
• A complaint under an internal bullying policy.
Reversal of Proof
Increase in number of claims coming before FWA
 FWA quarterly statistics: in the 3 months till June 2012, over 700
general protections claims.
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8.  Discrimination (section 351)
o Prohibition against adverse action on grounds of race, sex,
colour, sexual preference, age, disability, marital status,
family or carer’s responsibilities, pregnancy, religion,
political opinion, national extraction or social origin.
o Consider also any applicable state and federal anti-
discrimination legislation.
 Terminating sick or injured employees
o If requirements are met, employees may not be dismissed
for at least three months if on sick leave or workers
compensation, potentially longer under some State/
Territory legislation.
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9.  What steps can you take to minimise or
mitigate your risk in termination cases?
• Importance of a clear and well kept written record
• Support person/ witness
• Regular performance reviews
 Consider frequent and informal progress updates
• Good employment contracts
• Company policies:
 Cover all salient areas and are cross-referenced
 Regular training around these policies
 Communication to staff
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10.  BlandsLaw was established in 2003 and is located in North
Ryde, NSW.
 Core expertise:
• Industrial Relations / Employment law
 Additional expertise:
• All aspects of general commercial law;
• Social media law.
 For more information, contact:
Andrew Bland
Andrew.bland@blandslaw.com.au
@irlawyeraus
Ph. (02) 9805 5600
www.blandslaw.com.au