Q: How do I minimise the risk of an unfair dismissal claim?
- You must have given warnings and an opportunity to respond and improve their performance, The employer should be seen to be helping the employee to improve.
- Allow the employee an opportunity to respond to any allegations in relation to their conduct or their capacity to carry out their duties
- Advise the employee that they can have a support person present. Note: the support person does not have to be an employee of the company;
- Ensure that the procedure carried out is consistent with thesize of the organisation and policies of the organisation
- The degree of human resources expertise in the enterprise will impact on the procedures followed
- Check the small business Fair dismissal code if you are a small business.
- Check the reason for dismissal is not discriminatory or unlawful. Seek legal advice if you are unsure
- Notify the employee of the reasons for their dismissal.
Q: What governs your employees?
There are several instruments that set out terms and conditions. The most common three are:
1. NATIONAL EMPLOYMENT STANDARDS (NES)
The NES apply from 1 January 2010. The NES can not be bargained away by contract or enterprise agreement or award or any other method.subject to limited exceptions
The 10 national standards are:
- Maximum Hours of work is 38 hours per week plus reasonable additional hours.
- Flexible Working Arrangements. An employee can seek flexible work arrangements if they satisfy the criteria
- Parental Leave – Up to 12 months unpaid leave shared amongst the caring parents. Parents can have 3 weeks concurrently (previously only 1 week). A parent can apply for an extension for a further 12 months. Both parents collectively cannot take more than 24 months. This extension is not automatically granted.
- Annual Leave. 4 weeks per year. Shift workers have an additional week per year.
- Personal Leave. 10 days personal (sick/carers) leave.
- Compassionate Leave. 2 days compassionate leave per occasion if life threatening or death of employee’s immediate family.
- Community Leave
- Long Service Leave. The long service provisions are provided for by award or in the current state legislation. It is likely that there will be an attempt to achieve some National Standard down the track.
- Public Holidays. An employer can ask an employee to work a public holiday unless it would be reasonable for an employee to refuse.
- Notice of Termination and Redundancy
2. MODERN AWARDS
The modern awards provide additional entitlements of the NES. The aim of the awards is to be simple, economically sustainable, flexible, promote collective bargaining and are non-discriminatory.
2. EMPLOYMENT CONTRACT
Help to define the terms of the relationship between the employer and employee