Unfair dismissal
Dawn of the WorkChoices era
The effect of WorkChoices is that it has brought about a return of the pre 1984 position in relation to unfair dismissal for those employees that are unable to jump through the following 3 hoops: (i) the 100 employee requirement, (ii) the sixmonth requirement, and (iii) The “genuine operational reason” requirement.
A claim for unfair dismissal will now not be able to be made to the AIRC by an employee who works for an employer that employs 100 or fewer employees. This number is based on full-time, part-time and any casual employees who have been employed by the employer on a regular and systematic basis for at least 12 months. Some related companies of the employer’s company will be treated as one entity. A claim for unfair dismissal against an employer who employs more than 100 employees may only be made to the AIRC after the employee has worked for 6 months or more with that employer.
Even if the employee is able to jump through these first two hoops, the employee’s claim may still be dismissed if the AIRC is satisfied that the employee’s employment was terminated for genuine operational reasons or for reasons that included genuine operational reasons – i.e. reasons of an economic, technological, structural or similar nature relating to the employer’s business or part of the business. This means that just to satisfy the threshold requirements for claiming unfair dismissal, the employee (i) needs to have been employed by an employer with over 100 employees, (ii) needs to have worked for six months or more for that employer, and (iii) must show that his/her termination did not include genuine operational reasons.
The Melbourne firm has a vast depth of experience in the practice of law and business. The combined legal and consulting experience of our current staff exceeds over one hundred years.
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