Unfair Dismissal and General Protections Claims
Receiving notice of a claim from Fair Work can be worrying for most employers, regardless of how well a scenario was handled or managed in the first instance. We can take the stress out of the situation, but remember, time is of the essence! ChildCare HRS can assist you with your claim response forms and help you form a solid defendable position to act in confidence moving forward.
With the introduction of the Fair Work Act, unfair dismissal applications have increased dramatically. The new general protection provisions are also proving to be a popular means for disgruntled employees to raise grievances.
Under current Australian legislation, terminating an employee requires considerable planning and preparation on the part of the employer. The law and tribunals expect employers to terminate employment fairly: that is, to have a good reason for the termination, and to give the employee procedural fairness in the termination process.
Dismissal of an employee that is carried out by an employer without sufficient or acceptable reason and/or without the employer following proper procedure may be declared an unfair dismissal by an industrial tribunal and reinstatement or compensation may be ordered.
Adverse action includes dismissing or refusing to employ someone, discriminating against them, or otherwise injuring them in their employment (for example, by demoting them, or reducing their overtime or ordinary hours of work). A general protections dispute occurs when adverse action is taken - or when a threat to take adverse action occurs - because a person has one of these rights, exercises such a right or, in some cases, proposes to exercise such a right.
The majority of general protections applications relate to alleged adverse action taken by the employer against the worker, usually based on discriminatory grounds or because the employee is temporarily absent from work due to personal illness or injury. Under s361 of the Fair Work Act, a reverse onus of proof applies in general protections matters. The employer must rebut the allegation of the employee was (say) terminated. For the employer to rebut such an assumption, the standard of proof is higher than the mere balance of probabilities.
At ChildCare HRS we have many years’ experience in representing and assisting employers, in proceedings before the industrial tribunals and the discrimination authorities. We can provide expert advice that will minimise the risk to your business of an unfair dismissal or adverse action claim and represent your interests if the need arises. We can:
Provide quick, effective and easy to understand advice, as an employment issue arises
Highlight risk areas for you, and suggest ways of dealing with particular circumstances
Advise the most appropriate ways to manage poor performance, misconduct or redundancies
Provide up to date information on employee entitlements and payments required upon termination
Represent or assist your business in conciliation conferences and advise how best to present your case