The Write Advice

with Paul Munro

Ensuring employment compliance

Paul Munro, Senior Workplace Advisor with Australian Business Limited answers the most commonly asked questions regarding unfair dismissal and understanding awards.

Q. What is a dismissal?

A. Dismissal is not just a question of whether the employer or the employee terminated the contract of employment. There are at least 17 different ways in which a dismissal by either party can take place. It is not uncommon for the employer to misunderstand which party has actually terminated the employment.

Q. Can an employee who is redundant still succeed in an unfair dismissal claim?

A. Yes. Although redundancy is a valid reason for dismissal, the employer needs objective selection criteria to determine who is to be made redundant. In some cases it may be possible to retain the employee in another job. Also, the employer needs to notify employees once a definite decision has been made that redundancies will occur. Failure of the employer to do so may result in a successful unfair dismissal claim by affected employees.

Q. What steps do I need to take to minimise the risk of an unfair dismissal claim?

A. The employer needs to have in place a fair disciplinary procedure. Such a procedure should allow the employee to understand any allegations made against him/her. The procedure should allow the employee to respond to these allegations within a reasonable period of time. Written warnings should be given to the employee. However, in some cases, instant dismissal may be justified if the conduct of the employee is serious and wilful. These written warnings and previous counselling sessions with the employee may be used to assist the employer defence in the event that the employee challenges the fairness of a dismissal.

Q. What is the definition of a casual employee?

A. Generally, a casual is an employee who is employed and paid as such. Although the employer may think an employee is casual, industrial tribunals have deemed that certain factors determine that an employee may in fact be a full-time or part-time employee.

Q. What is overtime?

A. Employers would have an accepted understanding of the meaning of the term 'overtime.' However, there is a difference between what overtime is and what are hours that attract overtime penalty rates. This question is currently being determined by the High Court of Australia and has widespread ramifications for employers in the calculation of many payments including the superannuation guarantee charge and the calculation of ordinary pay for annual leave and long service leave purposes.

Q. Do I pay a penalty on a penalty?

A. Generally, awards calculate penalty rates on the ordinary rate of pay. Confusion often occurs for employers when two penalties coincide, such as a shift worker working overtime or overtime being worked on a public holiday. The workshop will identify the principles that apply to the interpretation of these and other phrases that appear in awards.

For further information phone Australian Business Ltd on 13 26 96 or visit www.australianbusiness.com.au/eventscalendar