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Navigating the New World of Unfair Dismissal and Workplace Rights. Stephen Woodbury Partner. Fair Work - A Range of Choices:. Unfair Dismissal. Constitutional Corporations and Victorian employers Award or Enterprise Agreement Covered Employees Less than $108,300 annual earnings. Included.

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Presentation Transcript
fair work a range of choices
Fair Work - A Range of Choices:

SLIDE 2 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

unfair dismissal
Unfair Dismissal
  • Constitutional Corporations and Victorian employers
  • Award or Enterprise Agreement Covered Employees
  • Less than $108,300 annual earnings

Included

  • Less than 6 months service (12 months for Small Business)
  • Specified term and specified task
  • Casuals, trainees, seasonal workers
  • Genuine Redundancy

Excluded

SLIDE 3 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

slide4

Unfair Dismissal

  • Harsh, unjust, unreasonable
  • For SB's – comply with SB Code

Test

  • Reinstatement
  • Reappointment
  • Appointment to Associated Entity
  • OR
  • Compensation (6 months rem)

Remedies

SLIDE 4 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

unfair dismissal5
Unfair Dismissal

Application to FWA

  • Within 14 days
  • Extension of Time
  • Application Fee

Determination of Jurisdiction/Extension of Time

  • May be by telephone or video

Private Conference

  • Subject to FWA discretion as to when and how conducted

Hearing of Merits

  • Subject to Public Interest
  • Only on questions of law or significant error of fact

Appeal

SLIDE 5 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

slide6

Workplace Rights

Person Must Not

Take Adverse Action

  • Person has Workplace right to
    • benefit of workplace law, instrument, order
    • make complaint or injury under law or in relation to employment
    • Initiate or participate in process or proceeding under workplace law etc.
  • Person is or is not a member of industrial association, engages or does not engage in industrial activity.

Because

SLIDE 6 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

slide7

Workplace Rights

Person must not

Take Adverse Action

Of race, colour, sex, sexual preference, age, disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction, social origin.

Because

  • Not unlawful under anti-discrimination laws
  • Because of inherent requirements of position
  • In accordance with religious grounds.

Unless

SLIDE 7 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

slide8

Workplace Rights

Person must not

Dismiss an employee

Of temporary absence from work due to illness or injury

Because

  • No medical certificate or statutory declaration
  • No compliance with requirements to notify
  • Not on paid personal/carers leave
  • Absent for 3 months or more than 3 months within 12 month period and not on paid personal/carers leave.

Unless

SLIDE 8 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

slide9

Workplace Rights

Person must not

  • Demand payment of bargaining service fee or induce person to become, remain or cease to be member
  • Discriminate against person because of coverage by NES, Enterprise Agreement or Workplace Instrument
  • Coerce person to employ or engage or allocate duties (or not).
  • Coerce person to exercise or not exercise workplace right or engage in industrial activity
  • Exert undue influence or pressure on person re decisions concerning agreements under FW Act
  • Misrepresent or mislead as to workplace rights or right to engage in industrial activity

SLIDE 9 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

workplace rights
Workplace Rights
  • Note: different process if not dismissal

Unlawful Dismissal

  • Within 60 days
  • Extension of Time
  • Application fee

Application to FWA

Private Conference

  • FWA advice on prospects
  • Elect within 14 days

FWA Certificate

  • May issue injunction, order reinstatement, award compensation, impose penalty.

FC/FMC

SLIDE 10 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009

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SLIDE 11 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009
slide12
SLIDE 12 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009
questions
Questions

SLIDE 13 UNFAIR DISMISSAL, UNLAWFUL TERMINATION AND WORKPLACE RIGHTS 21 SEPTEMBER 2009