In Australia, employees who are unfairly dismissed during probation periodhave 14 days from the date of dismissal to bring an unfair dismissal claim. Unfair dismissal proceedings are brought before Fair Work Australia (FWA). Small business employers are be able to seek immunity from these claims. The definition of a small employer is whether an employer has fewer than 15 employees.
An employee of a small business employer will only be able to institute unfair dismissal proceedings if he/she has been employed with the business for at least one year. After this one year period a small business must be able to demonstrate that it has followed the processes set out in the “Small Businesses Fair Dismissal Code” in order to be able to successfully defend an unfair dismissal claim.
Employees who are engaged by businesses other than a “small business” (i.e. employers of 15 or more employees) are only able to institute unfair dismissal proceedings where they have been employed for at least 6 months and earn less than $108,300 per annum.
Fair Work Australia has the discretion to conciliate a dispute or refer it to a hearing after taking into account the views of the parties. A hearing may be held at any time (i.e. before, after or during a conciliation conference). Before dealing with the merits of an unfair dismissal claim, Fair Work Australia must determine whether:
1. the application has been brought within the prescribed time period;
2. the application has been made against a person who is protected from unfair dismissal;
3. whether the dismissal was consistent with the Small Business Fair Dismissal Code (if applicable); and
4. whether the dismissal was as a result of a genuine redundancy.
In considering whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account:
1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees), and
2. whether the person was notified of that reason, and
3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal, and
5. if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal, and
6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and abandonment of employment.
8. any other matters that FWA considers relevant.
Fair Work Australia has the discretion to permit either party to be legally represented at a conciliation conference or a hearing. A person involved in an unfair dismissal case before Fair Work Australia must meet their own costs. However, Fair Work Australia may order a person to bear some or all of the costs of another person if the unfair dismissal application or response to it was frivolous, vexatious or made without reasonable cause or had no reasonable prospect of success. Otherwise, FWA may award up to 6 months salary and/or reinstatement in compensation for a successful unfair dismissal application.
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