NSW Industrial Relations is publishing regular information on topics relating to the changes and what the move to the national scheme means for both employers and employees.

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The new unfair dismissal laws now apply to all NSW employers and employees. Unfair dismissal occurs where a worker is sacked (or threatened with the sack) by their employer and they believe the action is harsh, unreasonable or unjust.

Importantly, the time frame in which to lodge an unfair dismissal claim has been reduced from 21 days to 14 days.

To lodge an unfair dismissal claim, qualifying periods apply depending upon whether the business has less or more than 15 full-time equivalent employees.

For businesses with 15 or more full-time equivalent employees, the qualifying period is 6 months; for businesses with less than 15 full-time employees, the period is 12 months.

A new Small Business Fair Dismissal Code applies to businesses with fewer than 15 full-time equivalent employees. This provides guidance and assistance for small business when considering dismissing an employee.

Small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer has followed the Code then the dismissal will be deemed to be fair.

Employees who have been dismissed because of a business downturn or their position is no longer needed cannot bring a claim for unfair dismissal.

However, the redundancy needs to be genuine. Re-filling the position with a new employee is not a genuine redundancy.

The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.