The NES require employees to be provided with a specified minimum period of notice upon termination of employment. A modern award may also specify the period of notice which is required to be provided or the modern award may merely rely on the NES provisions. If the period of notice required to be given by either the employee or employer is to be different to that set out in legislation and/or an applicable modern award or enterprise agreement, it should be written into the employment contract (but employers cannot make the notice they are required to give to employees any less than that provided for in legislation or in an applicable award or workplace agreement).
If an employer does not want the employee to remain employed during the notice period they may ask the employee to leave immediately, but must make a payment "in lieu" of the amount the employee would have earned, if he/she had worked during the notice period.
An employer has a right, both at common law and in accordance with the Act, to summarily (without notice) dismiss an employee for serious misconduct. There is no fixed rule of law which outlines the degree of misconduct which justifies summary dismissal, although the Fair Work Regulations 2009 relevantly define serious misconduct as wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment and sets out some circumstances in which this would be the case. The Code of Conduct formulated by your organisation should provide guidelines as to grounds for summary dismissal. Employment contracts may also specify grounds for summary dismissal.
A National system employee who believes they have been unfairly dismissed from employment (having completed at least 6 months continuous service) by an employer may apply to Fair Work Australia for relief within 14 days after the dismissal, or such extended period as the Fair Work Australia may permit. Similarly, a State system employee may apply to State industrial relations commissions.
When Fair Work Australia considers whether a dismissal is unfair by way of being harsh, unjust or unreasonable, Fair Work Australia will take into account a range of factors including:
- if there’s a valid reason for the dismissal relating to the employee’s conduct or capacity;
- if the employee is notified of the reason and given an opportunity to respond;
- any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to dismissal;
- if the dismissal relates to unsatisfactory performance, whether the employee is warned about this unsatisfactory performance before the dismissal;
- the impact of the size of the employer’s enterprise on the dismissal process, including the absence of dedicated human resource management specialists or expertise; and
- any other factors Fair Work Australia considers relevant.
Employees of a small business are excluded from applying for unfair dismissal within the first 12 months of their employment. A small business employer is defined as someone who engages less than 15 employees (as a head count), irrespective of the hours worked and can include casual employee employed on a regular and systematic basis, employees of an associated entities and the employee being dismissed.
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