Dismissing an Employee in NSW

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DISMISSING AN EMPLOYEE IN NSW
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Dismissing an employee can be distressing and
upsetting for all concerned and therefore
ensuring that the dismissal is done in a fair and
appropriate manner is important to both the
employee and the employer.
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• At the same time, the FW Act, sets out the
  circumstances where an employee is entitled to
  make unfair dismissal claimsagainst the employer.
• In NSW, the Fair Work Act 2009 (FW Act) sets
  out the legal obligations of the employer in
  ensuring that an employee is fairly terminated
  and provides certain protections against unfair
  dismissal of an employee.
• At the same time, the FW Act, sets out the
  circumstances where an employee is entitled to
  make unfair dismissal claimsagainst the employer.
• The FW Act under Chapter 5, (Parts 5-1 and
  5-2),establishes two government bodies which are
  responsible for its administration.
•  
• The Fair Work Commission (FWC)
• The Fair Work Ombudsman (FWO)
• These separate entities perform different roles
  and work within the national legal framework in
  Australia.
•  
• The FWC and the FWO provide the means and
  processes through which employee rights and
  conditions in the workplace are protected and
  managed.

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• In particular, this is done by
• The FWC (the main national tribunal) having
  jurisdiction over, wages and wage entitlements,
  unfair dismissal disputes, unlawful termination,
  general protections and anti bullying.
• The FWO (the employment advocate) determines
  issues of wages and workplace entitlements,
  provides general advice, education and training
  to both employees and employers and provides
  dispute resolution services.
• Both provide resources and services of mediation,
  conciliation hearing swhich assist in the
  resolving of disputes between employees and
  employers prior to escalating to a court.

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What are important considerations for the
employer when dismissing an employee?
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• The FWC looks at whether there was a valid reason
  for terminating an employment contract. The
  reason, cant just be a far-fetched or impulsive
  act of termination by the employer.
• Is there a justifiable reason relating to the
  employees performance that has led to the
  decision to dismiss the employee?
• Is there some form of misconduct that is evident
  and is the primary reason for dismissing the
  employee.
• There needs to be a substantive reason, once
  established the FWC then looks to whether there
  has been procedural fairness associated with the
  dismissal.

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• The considerations are normally
• Did the employee, have the opportunity to
  respond?
• Was the employee given the opportunity to prove
  they could improve their performance?
• The FWC is looking toestablish that the employee
  has been given a fair go in terms of having the
  chance to improve as well as having input into
  the decision making process.

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Is the size of the employers business a factor
in the process of dismissing an employee in NSW?

• No, an employee may bring an action of unfair
  dismissal against a business no matter its size.
• However, there are additional requirementsfor
  Small Businesses with 15 or less employees to
  follow the Small Business Fair Dismissal Code.
• A small business must follow a checklist in
  determining each of the below
• Summary Dismissal
• Dismissal of this type is deemed fair where the
  employer has reasonable grounds to terminate an
  employees employment immediately and without
  notice on the basis of serious misconduct.
• Other Types
• In all other cases the employer must have valid
  reasons of dismissing an employee based on the
  employees conduct and/or capacity to perform
  their job.
• This follows a process where warnings must be
  given in writing or verbally and the employee
  must be aware of pending dismissal in the event
  that the conduct is not rectified

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• Employees of a Small Business cannot make a claim
  for unfair dismissal within the first 12 months
  of their employment with the employer.
• After this period if the Small Business employer
  has followed the Code, then the dismissal will be
  deemed to have been fair.
• If after this period the employer did not follow
  the Code then the dismissal would be deemed
  unfair and the employee may bring an unfair
  dismissal claim against the employer.
• Where there has been a downturn in the business
  of the small business employer and a valid and
  genuine reason exists for the redundancy of the
  position of the employee, then the dismissal will
  be deemed fair and a claim for unfair dismissal
  cannot be brought against the employer.

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What employee rights does an employer have to be
aware of when making the decision to dismiss an
employee ?
An employee cannot be dismissed or forced to
resign their position entirely at the initiative
or conduct of the employer. The FWC looks for
procedural fairness being applied by the employer
in dismissing the employee. The employer is
required to provide reasonable notice stating
reasons and /or warnings of dismissal pending the
opportunity for the employee to rectify the issue
related to their conduct or performance. In the
event where this has not occurred then the
employee may make an application to the FWC for
unfair dismissal against the employer.
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• Employees who are excluded from making an unfair
  dismissal claim are
• Fixed term employees.
• Apprentices and trainees where employment ends
  at end of the arrangement
• High income earners (over 142000)
• Genuine redundancies
• Employees who are demoted and whose remuneration
  has not had a significant decrease
• Claims must be filed by the employee within 21
  days of the dismissal.
• The employer on receiving the claim from the FWC
  has 7 days to respond including any objection as
  to the FWCs jurisdiction of the matter.

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• In what circumstances is conduct by the employer
  likely to be harsh unjust or unreasonable in the
  dismissal of an employee?
• The FWC will consider the following areas
• Was there a valid reason for dismissal related to
  the employees capacity or conduct?
• Was the employee notified of that reason?
• Did the employer provide to the employee an
  opportunity to respond?
• Was there any unreasonable refusal by the
  employer to allow a support person to assistthe
  employee with any discussions related to
  dismissal.
• In the event of unsatisfactory performance by the
  employee, was there warning that continued
  unsatisfactory performance would lead to
  dismissal.
• The degree to which the size of the employers
  business would be likely to effect the procedures
  followed in effecting the dismissal.

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• What should a business (whether large or small)
  do to ensure a employee is dismissed fairly?
• It is not about, as most perceive being 3
  warnings and you are out!
• The employee needs to be placed on notice that
  their performance is not meeting the required
  standard and they must be given a reasonable
  opportunity to improve that performance.
• The best way to avoid claims for unfair dismissal
  is to make sure that the people in your business
  understand their obligations and responsibilities
  under the FW Act when terminating someones
  employment.

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• What are some tips for employers and employees ?
• Make sure decisions are transparent, fair and
  reasonable.
• Ensure the employee is provided with a written
  letter of termination stating the reasons for
  dismissal and clearly set these out.
• Carefully consider if there are grounds for
  summary dismissal as dismissal without
  noticeneeds to be for serious misconduct, theft,
  violence and breaches related to safety.
• Retain all file notes of meetings and
  performance criteria expected and met and full
  and detailed employment records in good form.
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