Termination of employment - employer questions about WorkChoices

Q&A

Termination of employment - employer questions about WorkChoices

This article is the fourth in a series that summarises the employer position under WorkChoices. The focus of this article is on termination of employment in the new WorkChoices environment.

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This article is the fourth in a series that summarises the employer position under WorkChoices. The focus of this article is on termination of employment in the new WorkChoices environment.

While many views have been given on some of the issues, nothing is conclusive until determined by the relevant courts.

These articles provide a snapshot of the types of questions that have frequently been asked by employers since the introduction of WorkChoices.

Notice of termination

Can an Australian Workplace Agreement (AWA) provide for a lesser period of notice by the employer than prescribed under the Workplace Relations Act?

The answer is no.

Section 661 of the WRAct provides the required minimum periods of notice to be given by the employer when terminating an employee's employment, based on the employee's year(s) of continuous service with the employer.

Covers all employers

Because this provision is derived from the 'external affairs power' of the constitution, it applies to all employers in Australia, including sole traders and partnerships.

Unfair dismissal

I have an employee I wish to dismiss who has completed five months service. I'm told the probation period under WorkChoices is now six months. Can he take an unfair dismissal action against me?

WorkChoices continues to provide a probation period of three months, although this period may be shortened or lengthened prior to commencement of the employment having regard to the nature and circumstances of the employment.

Qualifying period

However, an employee cannot apply to the AIRC on the ground that the termination was 'harsh, unjust or unreasonable' unless the employee has completed a 'qualifying period of employment' with the employer of at least six months, unless a shorter or longer qualifying period was agreed to, in writing, by the employer and employee, prior to the commencement of the employment. It should be noted that unfair dismissal laws under WorkChoices only apply to an employer employing more than 100 employees.

Probation period

An employee applying for unfair dismissal on a ground other than 'harsh, unjust or unreasonable', could make application for unfair dismissal if the probation period (say three months) had elapsed. It is difficult to think of scenarios that would fit into this category, but the legislation has this provision and case law may clarify its application over time.

Unlawful dismissal

An employee could pursue a claim if the reason for dismissal was 'unlawful', ie discriminatory, temporary absence due to injury or illness, member or non-member of a trade union, etc.

An application for unlawful termination can be made even where the employee was on a probation period, or had not completed the six month qualifying period of employment.

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