Fair Work Australia - Essay Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : xxxxxxxxxxxx Tutor : xxxxxxxxxxx @2010 “Employees should be able to assume that they are entitled to hold their jobs unless and until the employer has a good reason for dispensing with their services”. Introduction The modern employment correlation has transformed from an informal-based to a career relationship between employees and organization. As a result of this, the long-established ‘employment-at-will’ policy in which the employee had his or her services ended on indisputable, disputable or on no grounds at all has turn out to be quite unsustainable. Employees should be able to presume that they are at liberty to hold on to their jobs unless and until the employer has a genuine reason for dispensing their services. This too is the position stated by the common law as well as the federal legislation which preside over dismissal matters. Significant transformations as regards unfair dismissal have been established with an outlook of making simpler the process. The government set up a body well-known as Fair Work Australia, which it portrays as a ‘one-stop shop’. Laws are therefore available intended to make sure good employees are protected from unfair dismissal while at the same time enabling employers to deal with underperforming employees with fairness as well as confidence. The National Employment Standards of Australia provides various requirements making certain that employers present all new employees with a copy of the Fair Work Information Statement, an information sheet which holds information on essential elements of office relations system (Legal Aid, 2010). Fair Work Australia acts as the self-governing arbitrator for various workplaces in Australia. It has the power to determine unfair dismissal allegations and create orders on matters such as good faith bargaining as well as on industrial action, assisting employees along with their employers decide disputes at their workplaces. It began working on 1 July 2009 (Berkowitz et.al 2008). The New Employment Standards also have provisions to help support parents and carers in harmonizing their work and family responsibilities. For the first time in Australia, working parents will have the right to request flexible working hours or additional parental leave. Fair Work Australia in this makes judgment on various allegations. It does this by asking the various parties questions as well as looking for views related to the matters raised. However they do not allow for formal printed submissions, cross-examinations or inquiries. The parties involved are allowed to have a representative except for lawyers. Reinstatement here acts as the major remedy; if not compensation is ordered (Forsyth et.al., 2009). Dismissal Notification Entitlement Depending on the various circumstances, one of the many claims brought often by the plaintiff (employee) might be brought in against the employer. In this case a wrongful dismissal and most probably in a scenario where an employee has been dismissed with no appropriate notice, either the legal minimum, or the minimum as set in the employment contract. Wrongful dismissal against the employee by the employer is most to be expected in a situation where the employee has been dismissed devoid of any pay in lieu of any notice especially when he/she is not contractually permitted to do it (Berkowitz et.al., 2008). This means employers are expected to give out contractual notification periods, as well as conduct payments prior to notification of terminating employment in case it is explicitly offered for in a particular contract. Both scenarios can be an infringement to the contract, so the employee may now have claim for damages, calculated in order to set them in a position they were in should the infringement of the contract had not taken place. On the whole, employment law provisions provides that employees be entitled to a notice of dismissal often between 1 and 5 weeks in accordance to ages as well as the duration of service reflecting the present statutory provisions (Berkowitz et.al., 2008). Breach Awards for Unfair Dismissal This means the salary due during the notice period, as well as an amount corresponding to any kind of benefits payable for the period. Nonetheless, employees still have an obligation to mitigate through looking for a new job and, if they happen to succeed, their rewards are reduced for that reason. If the employees suppose they are entitled to more than an Employment Tribunal can award in such circumstances, then they can put their claim to a civil court. In the majority cases, employees are not able to sue against unfair dismissal save for no less than a year’s continuous service with the employer(Stewart,2008). However, in some circumstances, employees are able to sue their employers irrespective of the duration of service-for instance, if the grounds for dismissal seem to be ‘an inadmissible’ ground including pregnancy, or in cases of an allegation of a statutory employment right such as minimum pay. On the other hand, in case an Employment Tribunal finds an unfair dismissal claim against an employer, the employer will be forced to do the compensation. These include a basic award currently amounting to $11,400 maximum, as well as a compensation award which currently amounts to $65,300 maximum. To reach a decision, a Tribunal weighs both the grounds for dismissal, as well as the manner in which it is conducted (Forsyth et.al., 2009) On the other hand, an employee may be able to inquire for either a return to carry out the old job, as if he or she was not dismissed, or agree on a re-engagement. This means carrying out a different job having the same employer, an heir or a related employer. In all the cases, the employment is regarded as continuous and as though the employee was not discharged off his or her duties at all. Unfair Dismissal on Discrimination Grounds Employees may also claim against dismissal on other grounds such as discrimination. This can occur in situations where the employee alleges that the dismissal seemed discriminatory and was related to various factors including: sex or marital status colour, race, tribe or nationality disability religion, religious ideologies or rational beliefs age In these circumstances, there are no minimum service rations as well as no higher limits on the amount of compensations. An employee who succeeds on a discrimination allegation may also be entitled to a compensation covering for injury to his or her feelings. This is currently limited at $25,000.Empoyees are also able to come up with allegations or claims against certain individuals such as directors and managers. In cases where the employers have dismissed the employee for allegations of incompetence as well as disciplinary offences, the employer is expected to provide realistic references such as employment dates as well as the employee position. This information should contain references that are just in addition to being accurate, and not misleading. An employer is however not required by law to produce any reference in any way, though, a refusal to provide reference for instance, in a situation where the employee has come up with matters related to sex discrimination on employment can in itself bring rise to allegations of victimization. The Court of Appeal’s latest ruling on an employer who declines a reference to such allegations is guilty of such illegal unfair treatment. The employer in this case is obliged with a responsibility of care to the dismissed employee, to make certain the reference is not set carelessly or thoughtlessly. More over, the employer is still obliged with a responsibility of care to the soon-to-be employer. He or she therefore owes a liability to one of the parties, in case they go through loss as a result of the reference being misleading or wrong. If the allegation by the employee is one that can be forwarded to the Employment Tribunal, it is often brought within a period of three months from of the dismissal date. The Employment Tribunal is able to postpone time especially if the employee can confirm that it was not rationally practicable to bring out the allegations within the stipulated three-month duration. If the allegations are one which can be forwarded to the civil courts such as infringement of contract, an employee usually has about six years to put the claim. The court is able to give their judge and in some cases to make longer the time in some circumstances (Legal Aid, 2010). Time can be made longer in situations involving discrimination, when it is thought to be just as well as equitable. The Employment Appeals Tribunal also brought out a ruling that Tribunals have judgments to enable discrimination matters to carry on, even if the accusations to which are linked to were not put forward in anticipation of the end of the three-month duration. Unfair Dismissal on Incapability Grounds Incapability however comes out has one of the prospective just grounds for dismissal. The employer must however first take into considerations in case the employee’s ill health condition leads to a disability under the provisions of Disability Discrimination Act 1995.If it is found to be so, the employer might require to show that his/her treatment of the employee was on the grounds not in relation to disability-except for if such treatment could be defensible on the grounds that the reasons for the actions were material significant to the case, as well as being substantial (Fair Work Act, 2009) The Employment Appeals Tribunal came up with a ruling citing that extended absence due to a disability may well be treated in the same manner as an extended absence due to sickness, but an employer is still required to prove that the dismissal grounds may possibly not be removed through a rational adjustment to the working conditions of the employees, or else it is termed as discrimination. In case the employee goes through a prolonged duration of ill health, an Employment tribunal will with no doubt expect the employer to carry out everything he/she can do to maintain the employee, if possible along with a proposition of an alternative employment. Nonetheless, if after discussion between the employee and a medical inquiry there is no hope of the ill employee getting back to work, and the employer cannot maintain the post open indefinitely, he or she can dismiss based on reasons of incapability. Recent cases at the court of Appeal, however as well as the Queen’s Bench Division has pointed out that, the employee has the right to significant damages if the incapability has occurred due to the employer’s failure to identify the risk of not working resulting from stress. The employer, in this case, is required to prove that he or she acted sensibly in treating that absence as the basis for dismissal, and that he or she acted justly prior to dismissal. In this, the employer can steer clear of allegations of unfair dismissal. (Fair Work Act, 2009) Unfair Dismissal on Redundancy Grounds More over employees who are made redundant are have a right to entitlement of a redundancy pays most likely in conformity with a given range offering between zero and sixteen weeks’ salary, depending on the duration of service. Extended-service leave, initially, available extended-service leave entitlements in terms of awards are preserved, though the government of Australia will be working along with the states to come up with nationally dependable extended service entitlements (Forsyth et.al., 2009) Constructive dismissal Constructive dismissal takes place when an employer hands over a fundamental infringement of the employment contract. This means that it is so fundamental that it seems as if the employer no longer has an intention bound by a crucial part of the contract. This kind of breach forces the employee to quit the job. Such circumstances might occur, for instance, when an employee’s salary is cut, or when an employer makes it clear that he or she is demoting or undermining a manager, or signed up another person to carry out duties in a given place and thereafter jointly demanded that the employee move on to another. A change of job tasks does not necessarily mean a fundamental infringement within the employment contract, especially in circumstances where the employer had applied all the ways trying to assist the employee enhance their performance (CCH editors, 2010). However, much of these rely on the various facts. Prior to April 2009,employees who came up with allegations on constructive unfair dismissal before an Employment Tribunal were more likely to have the allegations blocked unless they had moved up the allegations, in the writing form, as accusations, and thereafter took no less than 28 days for the employer to respond. The rule is no longer applicable, though employees who unfairly fail to adhere to the accusation procedure might find the compensation lowered down by a near 25 percent in the succeeding Employment Tribunal procedures (Bureau of National Affairs, 2008) An employer is also capable of making certain that a discontented employee does not bring an allegation due to unfair dismissal. The employer however needs to prove that there existed fair grounds for the dismissal, and that he /she reacted sensibly in dismissing consequently. In this case, there exist six prospective just grounds that lawfully give good reason for dismissal. This means that an employer has to ascertain at least one of the prospective grounds for dismissal in order to prevent a dissatisfied employee from coming up with allegations of unfair dismissal. The employer is also required to ascertain that he /she adhered to the just procedures as well as following a just and sensible disciplinary actions, along with matters of high-level misconduct. The employer’s disciplinary along with the grievance actions has to be just and sensible (Fair Work Act, 2009). Just Grounds for Dismissal Stewart, A (2008) confirms the existence of an Act Code of Practice that assists the employers realize this. An unjust failure to act in accordance with the available code imply that an employment tribunal is now able to raise any award against the employer by 25 per cent or lower it down by the same percentage if the failure is on the employees’ side. This is as stated by the statutory cap, presently at $65, 3500 as well as a minimum fundamental award of a month’s salary, but only for discrimination cases, where the statutory cap does not apply. The six prospective just grounds that lawfully give good reason for dismissal are: the employee’s conduct Illegality, for instance, where an employee has been engaged to carry out something illegal, or is illegally allowed to work in Australia. some other considerable grounds which give reason for dismissal, for instance, pressure coming from a intermediary customer in a scenario where the dismissal is of a 65 year old, and the dismissal is on the grounds of the employee’s retirement, and he has been informed of his right to apply to extend his /her working period as stipulated by age discrimination law. Redundancy employee’s potential or qualifications - this is presumably to be applicable in cases of illness or other long period absence, or where the employee has no essential skills or qualifications necessary for the job Conclusion Employees should therefore be able to presume that they are at liberty to hold on to their jobs unless and until the employer has a good reason for dispensing their services. The government too, through the Fair Work Australia, provides significant statutory provisions and employment standards that protect employees against any form of injustices at the workplace. The statutory provisions eventually determines unfair dismissal allegations and create orders on matters such as good faith bargaining as well as on industrial action, assisting employees along with their employers decide disputes at their workplaces References Berkowitz, P, M, Muller-Bonnani and Reitz, A, E, 2008, International Labour and Employment Law, Volume 2, International Practitioner's Desk Book Series. American Bar Association. Bureau of National Affairs (Arlington, Va.), Bureau of National Affairs (Washington, D.C.), 2008, Fair employment practice cases, Volume 15, Bureau of National Affairs, California CCH editors, 2009, Australian Fair Work Act: With Regulations and Rules, CCH Australia Limited. Forsyth, A and Stewart, A, 2009, Fair Work: The New Workplace Laws and the Work Choices Legacy, Federation Press. Fair Work Act, 2009, Guide—Unfair Dismissal: A Copy of the Fair Work Act 2009, The Fair Work Regulations 2009 and the Fair Work Australia Rules 2009, Retrieved on September 3 from http://www.fwa.gov.au/index.cfm?pagename=resourcefactsunfair Legal Aid, Australia, 2010, Unfair Dismissal and Unlawful Termination of Employment, Retrieved on September 3 from Stewart, A, 2008, Stewart’s Guide to Employment Law, Federation Press. Read More