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REIQ Journal : February 2010
Are you looking for the strength of joining a real estate agency with over 95 offices across Australia and growing? Talk to an agency that has: an understanding of your needs • proven prospecting program • new & innovative technology • generous defined territories • practical hands-on training • accessible management • realistic expectations • track record of success • quality referral system • strong brand recognition • We have opportunities available for new and existing offices. Call John Bruce today on 0402 341 655 for a confidential discussion. Join a network that makes you feel Welcome Welcome ® stockdaleleggo.com.au DECEMBER.indd 1 12/01/2010 1:47:15 PM With the abolition of the Workplace Relations Act 1996 (Cth) (WR Act ) and its replacement by the Fair Work Act 2009 (Cth) (the FW Act), the right for employees to bring statutory unfair dismissal claims has been given a new lease of life. Significantly, employees of small businesses (that is, businesses employing less than 15 relevant employees) can now bring unfair dismissal claims under the new legislation. Claims are now to be dealt with by a new body, Fair Work Australia (FWA), in a “quick” and “informal” manner. In this article, we will examine some of the key provisions of the FW Act dealing with unfair dismissal claims and some of the issues that need to be considered by employers in particular. What is ‘an unfair dismissal’ and what are the objects of the FW Act? A person has been unfairly dismissed under the FW Act if FWA is satisfied that: The person has been dismissed; The dismissal was harsh, unjust or unreasonable; The dismissal was not consistent with the Small Business Fair Dismissal Code (“the Code”); and The dismissal was not a case of genuine redundancy1. Restrictions are still placed upon the types of employees who can bring a claim (e.g. “high income threshold” employees are excluded)2 . Although re-instatement was always a feature of the WR Act, it is envisaged that FWA will consider it more carefully as a possible remedy under the FW Act, in place of a straight-out order for compensation. The procedures and remedies, and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The focus on a “quick, flexible and informal” process means that most initial conciliation conferences, which are normally the first occasion on which the parties meet to discuss the matter, are held over the telephone. Remedies for unfair dismissal The FW Act provides for two primary remedies in the context of a finding that a dismissal was unfair: reinstatement or payment of compensation. Payment of compensation cannot be ordered unless FWA is satisfied that reinstatement of the person is inappropriate3 . Unfair dismissals: it’s a whole new ball game By Clayton Payne, Senior Associate, Carter Newell Lawyers REIQ Journal February 2010 31 Legal Issues
December January 2010