Termination grounds, notice, coverage - employer questions about WorkChoices

Q&A

Termination grounds, notice, coverage - employer questions about WorkChoices

This article is another in a series of the most frequently asked questions by employers on issues related to the implementation of the WorkChoices legislation. Here are more questions about termination of employment.

WantToReadMore

Get unlimited access to all of our content.

This article is another in a series of the most frequently asked questions by employers on issues related to the implementation of the WorkChoices legislation. Here are more questions about termination of employment.

The answers are given on the assumption that the employer is a 'constitutional corporation' and covered by WorkChoices.

Chronic sick leave and unfair dismissal

Q. Our business is a partnership and, apparently, not covered by the new WorkChoices legislation. However, our two employees are covered by a Federal award. We wish to terminate one of the employees for performance-related issues. Because we are under the Federal system are we still subject to the unfair dismissal laws under WorkChoices?

A. Presuming the employer employs 100 employees or fewer, the employee would not have a claim for unfair dismissal, however the WRAct prohibits dismissal on the grounds of 'temporary absence from work because of injury or illness'.

Dismissal under these circumstances is deemed to be an 'unlawful dismissal'. 'Temporary absence' is defined as three months or a total of three months in any 12 months (excluding paid sick leave). This aspect of the Workplace Relations Act did not change as a consequence of the WorkChoices amendments.

Workers compensation and unfair dismissal

Q. Our business is a partnership and, apparently, not covered by the new WorkChoices legislation. However, our two employees are covered by a Federal award. We wish to terminate one of the employees for performance-related issues. Because we are under the Federal system are we still subject to the unfair dismissal laws under WorkChoices?

A. The NSW industrial relations legislation provides that an employer cannot terminate an injured worker's employment because the employee is not fit for employment as a result of an injury or illness within six months of becoming unfit for work.

A recent decision by the NSW Industrial Commission determined that this provision still applies despite the fact that unfair dismissal laws are now a Federal matter. The tribunal determined that because the provision relates to an employee's absence on workers compensation, the law is not 'industrial relations law' but 'workers' compensation law'. State and Territory workers' compensation law is not overridden by WorkChoices.

Notice of termination and casuals

Q. Our business is a partnership and, apparently, not covered by the new WorkChoices legislation. However, our two employees are covered by a Federal award. We wish to terminate one of the employees for performance-related issues. Because we are under the Federal system are we still subject to the unfair dismissal laws under WorkChoices?

A. The answer is no.

Casual employees are exempt from the notice of termination provisions under WorkChoices, however there may be a requirement under the applicable industrial instrument to provide a period of notice to a casual employee. Reference should be made to the relevant industrial instrument to establish the employee's entitlement in this respect. While most industrial instruments don't require any period of notice to be given to a casual employee, there may be a requirement to pay a minimum payment for the casual engagement that day, eg four hours pay, although this provision is no longer enforceable in a pre-reform Federal award.

Partnerships and unfair dismissals

Q. Our business is a partnership and, apparently, not covered by the new WorkChoices legislation. However, our two employees are covered by a Federal award. We wish to terminate one of the employees for performance-related issues. Because we are under the Federal system are we still subject to the unfair dismissal laws under WorkChoices?

A. The answer is no.

From 27 March 2006, an employer that is not a 'constitutional corporation' is no longer covered by the Federal industrial relations system, except in Victoria, the ACT and Northern Territory (where all employers are covered by WorkChoices).

While the Federal award respondency will continue for a period of up to five years, the applicable unfair dismissal law will be in the relevant State in which the employer operates. This usually means the employer will need to apply a system of warnings to meet the 'harsh, unjust or unreasonable' principles which generally underpin State unfair dismissal laws.

Related

Termination and redundancy under WorkChoices



  

 

Post details