The Workplace Relations Amendment (Work Choices) Act 2005 has by vev19514

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									                    WORKPLACE SOLUTIONS UPDATE
                                                                                             July 2006 *
UNFAIR DISMISSAL

The Workplace Relations Amendment (Work
Choices) Act 2005 (Cth) has severely
restricted the class of employees for whom
an unfair dismissal action is available.

Unfair dismissal occurs when an employer
fails to give an employee a “fair go all
round” when terminating their employment,
making the termination “harsh, unjust or
unreasonable”. The Australian Industrial                                                  Chris Pollard
Relations Commission (AIRC) has the                                                  cjp@andrice.com.au
jurisdiction to decide unfair dismissal cases
and in making their decision the AIRC has                   The role of the AIRC has been significantly
regard to whether the employer had a valid                  altered by the amendments. The AIRC can
reason for terminating the worker’s                         now use its discretion to deal with and
employment, whether the worker was                          dismiss an unfair dismissal action "on the
afforded procedural fairness and the                        papers", without conducting a hearing,
individual circumstances of the case.                       where:
                                                                 • the employee is in an excluded
Unfair dismissal is now only available for:                         category;
       • employees of "constitutional                            • the employee was dismissed during
           corporations";                                           a valid probationary period;
       • employees of businesses with                            • the      employer     employs    100
           more than 100 employees;                                 employees or fewer;
       • employees with more than six                            • the claim by the employee is alleged
           months of service;                                       to be "frivolous, vexatious or
       • employees earning less than the                            lacking in substance";
           specified rate, currently $94,900                     • the claim by the employee is made
           per annum.                                               outside the period of 21 days from
                                                                    the date of termination.
Even within this narrow class, unfair
dismissal actions will not be available to:                 In dismissing an application "on the papers",
       • employees that have been                           the AIRC:
           dismissed due to or partly due to                     • must take into account "the cost that
           "genuine                operational                      would be caused to the business of
           requirements", ie redundancy;                            the    employer     concerned     by
       • seasonal workers.
                                      Level 10                                Tel:   +61 (0)3 9672 2666
                                      555 Lonsdale Street                     Fax:   +61 (0)3 9642 0271
                                      MELBOURNE VIC 3000                      Web: www.andrice.com.au
                                      AUSTRALIA
         requiring the employer to attend the                      will still be able to pursue claims under the
         hearing";                                                 action of unlawful termination.
     •   must make their decision after
         inviting both parties to provide                          It is therefore still unlawful to terminate
         further information on the relevant                       someone because of:
         issues;                                                           • temporary absence from work
     •   cannot revoke or amend its orders;                                   due to illness or injury;
     •   cannot have its decision appealed                                 • trade union membership or non-
         where a single member of the AIRC                                    membership;
         has exercised the discretion.                                     • acting or attempting to act in the
                                                                              capacity of a representative of
However, where an employer argues that an                                     employees;
alleged unfair dismissal arose due to a                                    • filing a complaint or participating
"genuine operational reason", this situation                                  in proceedings against an
must be the subject of a preliminary hearing                                  employer;
by the AIRC.                                                               • race,      colour,     sex,   sexual
                                                                              preference, age, physical or
Since the legislative changes have come into                                  mental disability, marital status,
force, the AIRC has thrown out a number of                                    family              responsibilities,
unfair dismissal claims based on the "100 or                                  pregnancy, religion, political
less" employees exemption. In Berryman v                                      opinion, national extraction or
Residential Truss Systems Pty Ltd                                             social origin;
PR973025 (8/6/06), where a worker claimed                                  • refusing to negotiate, make, sign,
that his former employer had unfairly                                         extend, vary or terminate an
terminated his employment on the same day                                     AWA;
as the commencement of the Work Choices                                    • absence from work during
legislation, the AIRC dismissed the                                           maternity leave or other parental
employee's      application    because   the                                  leave;
employer employed only 81 staff.                                           • temporary absence from work
Commissioner Thatcher stated that "it is not                                  because of the carrying out of a
relevant to the determination whether or                                      voluntary                emergency
not… " the employer was making "an                                            management activity.
attempt to hide behind new legislation…[as
the] employment was terminated on the very                         Furthermore, employees who believe they
same day that it came into effect".                                have been unlawfully terminated will be
                                                                   eligible to receive up to $4000 worth of
UNLAWFUL TERMINATION                                               legal advice. This will be based on the
                                                                   merits of their case, if they have a certificate
Fortunately, employees falling outside the                         from the AIRC and if they are assessed as
narrow class of employees for whom the                             having financial need.
action of unfair dismissal is still available,


This bulletin is for general information purposes only and should not be used or relied upon as an alternative to
obtaining detailed legal advice. Anderson Rice disclaims liability of any kind whatsoever to any reader of this
bulletin who acts in reliance wholly or partly upon these contents.
                                             Level 10                                  Tel:   +61 (0)3 9672 2666
                                             555 Lonsdale Street                       Fax:   +61 (0)3 9642 0271
                                             MELBOURNE VIC 3000                        Web: www.andrice.com.au
                                             AUSTRALIA

								
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