Maclarens Lawyers can advise Small Business regarding terminating employment

Published 15 Jun 2015
Louis Andreatta

If your business has fewer than 15 staff (including any associated entities), your business is governed by the Small Business rules regarding terminating employment. Small Business must follow the Small Business fair dismissal code, where it seeks to dismiss an employee who has been employed for more than 12 months. If you comply with the code, the dismissal will be deemed to be fair.

Generally, a dismissed worker can make a claim against you in the Fair Work Commission if they believe their dismissal was "harsh, unjust or unreasonable". However, a worker cannot bring such a claim in the first 12 months of employment.

You must have a "valid reason" to terminate employment based on the workers capacity to work or the requirements of your business.

Notice of poor performance is essential if you are to avoid a claim for unfair dismissal. This should be done in writing as well as verbally. Further the employee should be afforded the opportunity to respond to the warning.

If the workers position has become redundant because of changes to the workplace, you must comply with any award or enterprise agreement covering the workers employment. There may be requirements that you consult with the worker before making the worker redundant. You may also be required to consider whether you can redeploy the worker elsewhere in your business. If you fail to comply with these requirements, the worker may have 21 days to lodge a claim for unfair dismissal in the Fair Work Commission.

Even if a worker terminates the employment, a worker may bring an unfair dismissal claim if he can prove the employer's actions left the worker with no option but to resign. Such a claim is called a "constructive dismissal" claim.

You can dismiss a worker without notice for "serious misconduct" which includes theft, violence and serious breaches of safety regulations.

If you believe the worker may have committed a criminal offence such as theft or assault, you should report the incident to police. So long as you have reasonable grounds for believing the worker engaged in the serious misconduct, you may dismiss the worker even if the worker is not charged by police or convicted of any offence.

Unlawful Termination

The Fair Work Act protects all workers from unlawful termination. Unlawful termination includes termination because:

• Of the worker's race, colour, sex, sexual orientation, age, religious belief, mental disability, marital status, family or carer's responsibility, pregnancy, religion, political opinion, national extraction or social origin (unless it is an inherent requirement of the job)

• The worker has been absent through illness or injured

• The worker is or is not a union member or is running for office as a union representative

• The worker is on parental leave, paid or unpaid

• The worker is absent doing emergency volunteer work

• The worker has made a complaint or started proceedings against you or someone you employ

An employer who dismisses an employee for any of the above reasons may face heavy fines and ordered to rehire the worker. A worker has 21 days to bring an unlawful termination claim after their dismissal.

What to do if an employee brings a claim for unfair dismissal or unlawful termination

For an unfair dismissal claim, you must lodge a written response within the Fair Work Commission within 7 days of the worker bringing the claim against you.

If you are met with a claim for unfair dismissal or unlawful termination, Maclarens Lawyers can assist you to explore the best, most cost effective way of resolving the dispute.

How can Maclarens Lawyers help Small Business regarding employment termination?

Maclarens Lawyers can:

• Advise on the process you should follow

• Advise you of the workers' rights

• Advise whether there are any alternatives to dismissal

• Gather evidence to defend your claim

• Represent you in the Fair Work Commission

If your business has fewer than 15 staff (including any associated entities), your business is governed by the Small Business rules regarding terminating employment. Small Business must follow the Small Business fair dismissal code, where it seeks to dismiss an employee who has been employed for more than 12 months. If you comply with the code, the dismissal will be deemed to be fair.

Generally, a dismissed worker can make a claim against you in the Fair Work Commission if they believe their dismissal was "harsh, unjust or unreasonable". However, a worker cannot bring such a claim in the first 12 months of employment.

You must have a "valid reason" to terminate employment based on the workers capacity to work or the requirements of your business.

Notice of poor performance is essential if you are to avoid a claim for unfair dismissal. This should be done in writing as well as verbally. Further the employee should be afforded the opportunity to respond to the warning.

If the workers position has become redundant because of changes to the workplace, you must comply with any award or enterprise agreement covering the workers employment. There may be requirements that you consult with the worker before making the worker redundant. You may also be required to consider whether you can redeploy the worker elsewhere in your business. If you fail to comply with these requirements, the worker may have 21 days to lodge a claim for unfair dismissal in the Fair Work Commission.

Even if a worker terminates the employment, a worker may bring an unfair dismissal claim if he can prove the employer's actions left the worker with no option but to resign. Such a claim is called a "constructive dismissal" claim.

You can dismiss a worker without notice for "serious misconduct" which includes theft, violence and serious breaches of safety regulations.

If you believe the worker may have committed a criminal offence such as theft or assault, you should report the incident to police. So long as you have reasonable grounds for believing the worker engaged in the serious misconduct, you may dismiss the worker even if the worker is not charged by police or convicted of any offence.

Unlawful Termination

The Fair Work Act protects all workers from unlawful termination. Unlawful termination includes termination because:

• Of the worker's race, colour, sex, sexual orientation, age, religious belief, mental disability, marital status, family or carer's responsibility, pregnancy, religion, political opinion, national extraction or social origin (unless it is an inherent requirement of the job)

• The worker has been absent through illness or injured

• The worker is or is not a union member or is running for office as a union representative

• The worker is on parental leave, paid or unpaid

• The worker is absent doing emergency volunteer work

• The worker has made a complaint or started proceedings against you or someone you employ

An employer who dismisses an employee for any of the above reasons may face heavy fines and ordered to rehire the worker. A worker has 21 days to bring an unlawful termination claim after their dismissal.

What to do if an employee brings a claim for unfair dismissal or unlawful termination

For an unfair dismissal claim, you must lodge a written response within the Fair Work Commission within 7 days of the worker bringing the claim against you.

If you are met with a claim for unfair dismissal or unlawful termination, Maclarens Lawyers can assist you to explore the best, most cost effective way of resolving the dispute.

How can Maclarens Lawyers help Small Business regarding employment termination?

Maclarens Lawyers can:

• Advise on the process you should follow

• Advise you of the workers' rights

• Advise whether there are any alternatives to dismissal

• Gather evidence to defend your claim

• Represent you in the Fair Work Commission