In November 2010, the Full Bench of Fair Work Australia (“FWA”) handed down the authoritative decision of Ulan Coal Mines Limited (“Ulan”) v Honeysett and others (“The Honeysett Employees”) which provide the steps an employer needs to take to redeploy a redundant employee (so as to prevent a claim for unfair dismissal under the Fair Work Act2009 (Cth)) (“FWA 2009”).

Under the Unfair Dismissal provisions of the FWA 2009, an employee cannot bring an action for unfair dismissal in the instances of genuine redundancy. A redundancy is not considered to be genuine where:

1. The employer has not complied with any consultation obligations in a modern award agreement or enterprise agreement that applied to the employment; or
2. It would have been reasonable (in all the circumstances) for the person to be redeployed within
   1. The employer’s enterprise; or
   2. The enterprise of an associated entity of the employer.

It was accepted between the parties that the employer had complied with point 1, and the appeal turned on the issues of:

1. Whether the employee could have been redeployed within the employer’s enterprise or associated entity; and
2. What constituted a reasonable attempt of redeployment under the FWA 2009.

Impact of this decision on Employers

1. When making an employee redundant, you need to consider whether there is an available position within your company or an associated entity that the employee would be able to fill instead of being made redundant;
2. If there is a general application process in place, consider giving the employee preference over the general pool.  Please note this may not be enough to avoid unfair dismissal.
3. In the event that re-training would make an employee suitable for a position, this should be fully ...

   Continue Reading

WHAT IS THE SMALL BUSINESS FAIR DISMISSAL CODE
As of 1 January 2010, private sector employees are protected by the new national industrial relations system, the Fair Work Act, while public sector employees are covered by the state industrial relations system.

The Small Business Fair Dismissal Code is a new national workplace system designed to assist small businesses and their employees and works in conjunction with the Fair Work Act 2009.

The new system provides that the minimum employment period is now twelve (12) months (instead of the original six (6)) and that an employee cannot make a claim for unfair dismissal within this twelve (12) month period.

The system also recognises that Small Businesses are unlikely to have expert Human Resources staff and aims to assist employers ensure that any valid dismissals are not considered to be unfair.  This is done via the Dismissal Code Checklist, discussed below.
WHATE CONSTITUTES A SMALL BUSINESS?
Under the Code, a small business is considered to be any business where the employer employs less than fifteen (15) full-time equivalent employees.  Please note that this number can include employees of related entities.
APPLICATION FOR UNFAIR DISMISSAL REMEDY
An employee has fourteen (14) days from the date of the dismissal coming into effect to lodge an application to Fair Work Australia.  Applications are made to Fair Work Australia as part of the new national scheme.  Unfair Dismissal is determined to have occurred when an employee applies to Fair Work Australia and it is determined that:

• The employee was dismissed; and
• The dismissal was harsh, unjust or unreasonable; and
• The dismissal was not the case of genuine redundancy; and
• In the case of the employer being a small business, where the dismissal was not consistent with the Small Business Fair Dismissal Code.

For small businesses, for an employee to be eligible to make an unfair dismissal remedy ...

Continue Reading