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Legal

What is Unfair Dismissal in Australia

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Has your employment been terminated and you are wanting to know whether you’ve been unfairly dismissed? Unfair dismissal is the phrase often used in the workplace, however most individuals don’t exactly know what unfair dismissal really entails.

To clear out any possible confusion, let’s examine the different types of employment termination. One can’t be blamed for thinking that every time an employee is terminated, it is an unlawful termination. To better understand unfair dismissal, here are the terms and definitions and some of the causes and scenarios when an employee is terminated.

Termination of employment

From 1st January, 2010, the National Employment Standards (NES), replaced the non pay rate provisions of the Australian Fair Pay and Conditions Standards (this was known as ‘the standard’). With the introduction of NES, the laws related to redundancy including the redundancy payout, have changed. NES now encompass notice period when a worker is dismissed.

What all this means is that it is legal for an employer to dismiss an employee, proceed with the ‘termination of employment’ if:

–  It is due to a genuine redundancy; this means that the position has been made redundant, i.e. no longer needed within the company or

– Termination of employment is not considered harsh, unjust or unreasonable or

– Dismissal falls under the Small Business Fair Dismissal Code; This basically is valid for businesses with 15 of fewer employees.

Whenever an employment is terminated, the company is obliged to comply with the notice period. Notice period is part of NES and its amount depends on the period of continuous service. The scale is as follows:

– 1 week if employed for under 12 months,

– 2 weeks for duration of employment of between 1 and 3 years,

– 3 weeks if employed for the duration of between 3 and 5 years and

– 4 weeks if the period of continuous service was 5 years or more.

What is redundancy?

Under National Employment Standards (NES), redundancy can happen when an employer either:

– employer decides that they don’t need an worker’s job to be done by anyone else and terminates their employment or

– employer declares bankruptcy or becomes insolvent.

Possible redundancy scenarios include:

– There is a merger, acquisition or takeover of the company

– The business has restructured and reorganised the operation and no longer requires the position

– The company relocates

– Business output is reduced due to lower sales, market condition or any other reason

– The job an individual has been doing is replaced due to the employer introducing new technology or new work processes. Example of this is that the particular duty can be done by a computer or another machine.

Unlawful Termination

The definition of unlawful termination is when a worker’s employment is terminated for a discriminatory reason or any other reason that is against the current employment laws. Luckily, there are protections in place for employees who have been unlawfully terminated.

So what is unfair dismissal?

Unfair dismissal is when the employee has been terminated and it is not due to the genuine redundancy and Fair Work Australia (FWA) finds that the dismissal had been harsh, unjust or otherwise unreasonable.

Legal

7 Strategies to Achieve a Work Life Balance in the Workplace

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Employers who adhere to industry best practice rules regarding work life balance experience better productivity results, reduced absenteeism and their employees have a greater job satisfaction. This fact alone makes it worthwhile for workplaces to implement the measures that will achieve balanced work life outcomes.

Workplace flexibility requires participation from the employees as much as it needs a good will approach by the employers. This flexibility will in turn allow employers to achieve their business goals and at the same time allow workers to manage their lifestyle and family obligations. By establishing family friendly policies and practices, employers can help staff achieve their personal as well as professional goals in a controlled manner.

Seven strategies that will help toward more equal and family friendly workplace are listed below:

1. Arrange training and development seminars and courses during normal work hours. Cutting into people’s personal time is one way of depriving employees from having a normal work life balance in their lives and can contribute to their dissatisfaction.

2. Keep absent employees up to date with what is going on at work and any changes since they had gone on leave. This includes employees on workers compensation, maternity, paternity or adoption leave.

3. Allow flexible hours that suit both the employer and the staff. Employees should be accommodated to have flexible hours if they need to pick their children up from school or look after their elderly family member as an example.

4. Employers should provide certain periods of paid paternal leave and also unpaid leave during school holiday periods. This will accommodate parenting and career needs at the same time.

5. Make sure that as many staff meetings are organized when most workers can attend. Avoid organizing workplace meetings be it the professional or more fun gatherings, at times when most people are away, around school or public holidays for example.

6. Create meaningful part-time employment opportunities for workers who have small children or need to take care of their elderly family members. This may include arrangements such as working from home few days per week to accommodate personal needs.

7. There is no use of having good work life balance policies if the employees are not informed about them. Ensure that workers and potential job applicants are aware of the measures that the company has put in place in terms of benefits and to support staff’s family and lifestyle friendly workplace.

The benefits of creating family and work life balance friendly policies and putting them into practice include:

– staff retention and attracting new employees; making the company a desirable workplace in the industry to become an employer of choice

– improved staff morale that will lead to a larger workforce engagement and reduced absenteeism

– turnover reduction that will result in decreased cost of recruiting and training

As our society, our lives and subsequently our workplace changes, both employees and businesses need to be mindful of the need for work life balance in the workplace. This means that employees need to adjust to the general business climate and the companies need to constantly review their policies and provisions ensuring they are not outdated of irrelevant to their business.

Legal

How to Introduce Flexibility Agreements in the Workplace

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Flexible workplace agreements will deliver great benefits to both employers and their employees. They will increase business productivity by way of increasing employee’s job satisfaction and in turn decrease staff turnover and absenteeism. Flexible workplace arrangements will accommodate staff in their work life balance and personal circumstances.

Individual flexibility arrangements administration and implementation is mainly the responsibility of an employer who needs to make sure that the employee is better off overall with the introduction of such an arrangement. The ‘better off overall’ assessment can mean that the worker is not worse off in terms of their pay and conditions that may include hours, overtime rates, allowances, leave loading and alike.

Employees on the other hand are not obligated to enter into this agreement if they for whatever reason don’t want to. Businesses cannot force workers into a flexibility arrangement. If a flexible arrangement could not be achieved, employee must not be discriminated against or treated adversely in any way for refusing to enter into this agreement. As always, it is prudent for the employers to consider any language, cultural or other barriers that may influence worker’s understanding of the conditions of any proposed flexibility agreement.

In the case that such arrangement has been agreed to by both sides, employee has the right to terminate this agreement at any stage if he or she deems that the agreement has put them in the disadvantaged position. In fact, the agreement can be terminated by either party as long as the appropriate written notice is given. One month notice is normally fair and adequate.

The process of entering individual flexibility arrangement would look like this:

– After the employee or the employer decide that they would like to have a flexibility agreement, either party needs to approach the other with the details of the request.
– After discussing the terms of the proposal, employer needs to make sure that the employee is not disadvantaged in any way by the new arrangement and that the proposal does not contain any unlawful terms.
– Both parties sign and keep the copy of the agreement.

Listed below are the 7 best practice steps on using individual flexibility agreements in the workplace:

1. Identify opportunities where individual flexibility arrangement could benefit the business and employees at the same time.

2. Develop a process for consultation that will allow employees to approach the company. This process needs to encourage employees to identify flexible opportunities that will improve their work life balance.

3. Make sure that the agreement reflects genuine needs and does not put an employee in the disadvantaged position.

4. Make sure that the proposed individual flexibility agreement does not contain unlawful terms – have it checked over by employment lawyers.

5. Employees must not be unduly pressured to agree to any such agreement and a reasonable time should be allowed for employee’s consideration as well as the right to bring up any issues with the company.

6. Make the environment of openness where it is easy for employees to approach the company with the flexibility arrangement request.

7. If employees wish so, allow them to be represented and also give genuine consideration to worker’s individual flexibility arrangement request.