Workplace Law

1. Introduction to Termination

Termination is basically categories into two main types. One is active termination whereby active steps are taken by party to bring an employment contract to an end. Passive termination is one that is not due to the pro-active results of any party.

2. Introduction to unfair dismissal

Unfair dismissal refers to a dismissal which is considered to be unfair, harsh or unreasonable. Unfair dismissal is not recognized by common law but is introduced through legislation and awards an industrial agreement as usually unfair dismissal does not involve any unlawfulness. Before work-choices act was introduced, primary remedy for unfair dismissal is reinstatement of the employee, and claim for compensation will only be allowed if the primary remedy is impossible. Protection against unfair dismissal is applicable to all employees except one whose remuneration exceeds $90,400. These high income employees are also not covered by federal awards.

3. Work-choices act

The work-choice act has introduced several changes that alter the Australian system of unfair dismissal law. One of the most important changes is the constriction of employees that are protected from unfair dismissal. Example is employees of employers whose organization had 100 or less employees. Seasonal employees are also excluded from such rights.

Process for dismissing unfair dismissal application has also been streamlined ("on the papers"), and prescription of additional details that the AIRC was considered and be limited by when making payments in relation to unfair or wrongful dismissal, which is to say that AIRC power is severely limited. The work-choices act also attempted to cover the field on termination that was previously covered by the States. Some may say that it is the government policy to unite Australia under a single national system instead of different states with different laws.

4. Exemption

4.1 Employers with 100 employees or less

It is clearly stated in the work-choices act that employees with such employers are exempted from unfair dismissal right, and employees are not applicable to file an application for it. There are several condition to take note of when doing a head count for an organization:

- Related companies are taken into one entity

- The employees that are terminated are also included

- Casual employees are excluded unless they have been employed under a systematic basics for at least 12 months

- The time for the head count should be at the time that the employer give the notice period or the time that employment contract ends.

4.2 Operational reasons

Act provides that an unfair dismissal claim cannot be brought when employees are dismissed with genuine