employer to show that the dismissal was not motivated by any of the claimed discriminatory reasons. The best way for an employer to do this is to demonstrate the valid reason that it was motivated by. Failing to do so may lead the court or tribunal to infer that the discriminatory attribute alleged by the employee was a reason for the dismissal. So even if a valid reason and procedural fairness is not technically required, they will often be very important to demonstrate in order to defend a discrimination or breach of workplace rights claim. Once a decision has been made to dismiss the employee, termination of the employment and the meeting leading up to it should be documented in writing. Unfair dismissal laws require that the employee be notified of the reasons for the dismissal. In any event, it is good practice to expressly state in writing the reasons for the dismissal, as well as the effective date of termination. • It is generally not good practice to be evasive or too general about the reasons for the dismissal (even if unfair dismissal laws do not apply) as it may raise questions about the reasons for dismissal, allowing courts or tribunals to draw an inference that discriminatory reasons outlined above may have been part of it. • Failure to comply with these may expose the employer to an unfair dismissal claim or breach of the workplace agreement. The employee will be entitled to at least the minimum period of notice or payment in lieu of notice stipulated in the FW Act. The notice period depends upon the employee’s length of service. Employers also need to check whether an employee may be entitled to a higher period of notice in accordance with their contract of employment. Where an employee’s employment comes to an end because their position is redundant, the employee may be entitled to redundancy or severance pay in addition to any notice of termination or payment in lieu of notice. This entitlement may arise under the National Employment Standards in the FW Act, under an applicable award (including a modern award), workplace agreement, workplace policy or from the employee’s contract IMPLEMENTING THE DISMISSAL • NOTICE • REDUNDANCY •
DISCRIMINATION AND GENERAL PROTECTIONS When dismissing an employee, employers also need to ensure that a reason for the dismissal (even if not the only reason) did not include certain protected attributes of that employee, set out under state and federal discrimination laws or under the general protections available under the FW Act, including: • Race, ethnicity, colour, natural extraction or social origin or religion • Age • Physical features or characteristics • Disability or impairment • Temporary absence due to illness or injury • Sex or sexual preference • Pregnancy, carer or family responsibilities, or parental or carer status • Marital status • Having a role as a union delegate or Safety representative • Political opinion • Union membership or being involved in industrial activities • Making a complaint about occupational health and safety matters or conditions of employment. A temporary absence; is where the absence is not more than three consecutive months or three months in a 12-month period and where the employee is not on paid sick leave for the duration of the absence. An employer may have a defence to dismissing an employee for some of the above reasons if it was an integral requirement of the job or the employee could not perform the inherent requirements of the position due to the attribute (usually this will only apply to a dismissal due to a disability or impairment). Some categories of employees have additional protections, such as employees who have been injured at work, as they have additional protections under workers’ compensation legislation. It is also unlawful to terminate an employee’s employment because they have exercised, or wish to exercise, what is known as a workplace right. An employer is prevented from dismissing employees because the employee: • Is able to or has participated in workplace processes or proceedings • Has the benefit of, or a responsibility under a workplace instrument or law? • Is able to make, or has made, a complaint or inquiry to a body or person seeking compliance with a workplace law or instrument. If a court or tribunal finds that a reason for an employee’s dismissal is related to one of the above reasons, the dismissal is unlawful. Reinstatement is a possibility, as well as compensation of up to six months’ pay which is half of the high-income threshold amount) and a penalty of up to $33,000 imposed on the employer. Where a discrimination claim is made in a state or federal discrimination tribunal, compensation is not usually capped and while a penalty cannot be ordered, compensation can be ordered for pain and suffering or general damages as well as economic loss. With discrimination or unlawful termination claims, an employee usually has to establish that they have been dismissed and that they have the protected attribute they allege was a reason to dismiss them. However, in practice, the burden of proof then falls on the
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August 2018 www.tha.asn.au
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