Federal and State laws
There are federal and state laws covering the ending of employment, whether it involves dismissal or redundancy. The law also covers unlawful termination. In any situation you, as an employer, need to follow the law closely to avoid legal problems later.
South Australian private sector employers and employees operate under national industrial relations laws. The Commonwealth's Fair Work Act 2009 covers the whole of the private sector, including the non-government community services sector, private schools and universities.
South Australia's Fair Work Act 1994 applies only to employers and employees in the South Australian public sector, local government and prescribed Government Business Enterprises.
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Dismissal
To dismiss someone you need a valid reason based on poor performance or conduct. Before taking such action it is worth obtaining legal advice or support from an employer association.
According to
Fair Work Australia, a dismissal is unfair if it is harsh, unreasonable or unjust.
The State Act provides that an employee who feels that his or her employment was unfairly terminated has a right to apply to the
Industrial Relations Commission of South Australia for relief.
Employees working for a small business with less than 15 full-time workers cannot make an unfair dismissal claim in their first 12 months. The period is six months in larger companies.
Before dismissing someone:
- Give warnings and provide counselling in case the employee is unaware of their shortcomings.
- Document the steps you take - this will help protect you against a possible claim of wrongful dismissal.
- Think twice about dismissing someone for reasons not related to work - evidence and witnesses may be required for other reasons.
- Communicate with the employee verbally and in writing and provide an opportunity for them to respond.
- Provide clear reasons for the termination and outline the termination package.
- Give a notice period - the Fair Work Act 2009 specifies the requirements for a notice of termination and for payment in lieu of notice.
Remember, there are are tax implications when a job is suddenly terminated. The Australian Taxation Office website has detailed information for employers on
employment termination payments.
Redundancy
Employees can be made redundant if their job is no longer needed or the business is in financial difficulties. The
Fair Work Act 2009 provides for the payment of redundancy pay in these situations and specifies the amounts payable depending on length of service.
The Act also describes the nature of a
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Unlawful termination
Workers are also protected against unlawful termination. Examples of unlawful termination include dismissing someone because of their race, sex, colour, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
It is also unlawful to terminate an employees employment if they are:
- temporarily absent from work because of illness or injury
- because of union involvement or non-involvement
- because of absence from work during parental leave.
Contact the SafeWork SA Help Centre for more information.
Employees covered by the state industrial relations system may also be able to access protection against unlawful termination under the Commonwealth Fair Work Act 2009.
For more details please contact the Fair Work Infoline on 13 13 94.
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