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Decision tree following dismissal - Coggle Diagram
Decision tree following dismissal
Was the employee dismissed by their employer or did the resign?
They did not resign
Was the employee constructively dismissed?
How were they dismissed?
Why were they dismissed? What reasons were given, if any?
Were they dismissed summarily? That is, were they paid their notice?
Notice ALWAYS APPLIES - s 117
They resigned
Topic 3
Unfair Dismissal
Part 3-2
s 385, s 387
Can they apply? Or are they excluded?
ss 382, 384, 388, 389
Qualifying periods
12M for small business, s 23
6M for other businesses
If the employer is a small business and follows the small business fair dismissal code, the UD does not apply
Genuine redundancy s 389
Is the application within the time limits?
21 days s 394(2)
If they satisfy there requirements, are there others?
High income threshold as long
as not covered by modern award/EBA
- threshold goes up each year on July 1.
Resignation, unless constructive dismissal
Casuals not on a regular and systematic roster (if regular may still apply for UD)
Discuss process and procedures
First conciliation or a conference will be held
Should no settlement be reached the matter may go to a hearing of the FWC
Permission is required from both sides to engage lawyers and each party bears their own costs. There are no costs in Fair Work Act claims
If there is no settlement able to be reached, then FWC hold hearing
FWC appl s 387
Where the court is considering if a dismissal is harsh, unjust or unreasonable, the FWC MUST take into account
whether there was a valid reason for the dismissal related to the person's capacity or conduct p 424 TB
whether the person was notified of that reason
whether the person was given an opportunity to respond to any reason related to the conduct
any unreasonable refusal by the employer to allow the person to have a support person to assist at any discussions relating to dismissal
if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about this
the degree to which the size of the employers enterprise would be likely to impact on procedures followed effecting the dismissal
the degree to which the absence of dedicated HR professionals would be likely to impact on procedures followed to effect the dismissal
any other matters the FWC finds relevant
Likely conclusion
Remedies
ss 390-405
Reinstatement or compensation s 394
strict rules apply
6 months max
cannot get compensation for humiliation. distress, etc
no penalties, unlike adverse action. Bear own costs
Reinstatement very rarely ever ordered
Compensation s 392 (2)
what are the limits
6M
costs
that the 6M is a max and you oft wont get max
there is no compensation for torment, stress or humiliation
representation must be approved prior to attending the FWC
Costs
no costs jurisdiction
General Protections
Part 3-1
Who can apply? - s 342 - adverse action table
What time limits apply?
Other obstacles?
Procedures - conciliation at FWC
Should no settlement be reached, which Court holds jurisdiction?
Is there adverse action connected to a ground?
s 351
Grounds: workplace rights, industrial activities, discrimination
the employer must rebut the presumption
Remedies and penalties
Costs
Accessorial liability
EXTRA BONUS
Other miscellaneous actions under the FWA
What actions?
Any other issues concerning the NES?
Where are proceedings initiated?
Is consideration of breach of contract worthwhile?