1. We are a small business (less than 15 employees) and have an underperforming casual employee. If she is dismissed, will she be able to make an Unfair Dismissal Application to Fair Work?
The answer depends on several factors. For example, if she earns less than the high income threshold (currently $145,400 excluding superannuation and at risk remuneration), has been employed for over 12 months on a regular and systematic basis and has a reasonable expectation of continuing to be employed on that basis the answer is yes.
2. We are restructuring our business. We would like to abolish one role and split the duties between the remaining employees. Will this be considered a genuine “redundancy”?
The Fair Work Act provides that person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. This can include where:
Providing any other requirements contained in an Enterprise Agreement, Modern Award (eg the need to consult with the employee re the redundancy) or the Fair Work Act are met, it may satisfy the requirements of being a genuine redundancy.
3. How Much notice do I have to give when dismissing an employee?
The Fair Work Act sets the following minimum notice periods. However, please check the employee’s contract and any applicable Modern Award or Enterprise agreement – these may require a longer notice period.
Employee’s period of continuous service with the employer at the end of the day the notice is given:
Increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
4. We are planning to move our office from Manly to Ryde. As an employer, are we required to make redundancy payments if our employees say they cannot or will not move to the new location?
Generally, whether you are required to make redundancy payments will depend on whether the request to move is reasonable and the terms of the employee’s contract.
Putting aside the terms of the employee’s contract, if the request is reasonable then you are not required to pay them redundancy pay. If it is unreasonable, then you are required to pay them redundancy pay.
Reasonableness depends on many different factors. No one factor is determinative.
The typical relevant factors to consider include:
The terms of the employee’s employment contract should be checked to see if it entitles you to relocate the employee’s place of work at your sole discretion.
5. Is an employer’s verbal notice of dismissal effective or does it need to be writing?
Under the Fair Work Act an employer is required to provide written notice of termination. Failure to do so is a breach of the Act. However, this does not necessarily mean the notice is ineffective. If the verbal notice was received by the employee and he or she understood that the employment relationship had ceased, the termination will be taken to be effective from the time it was communicated.
The Government has amended the Fair Work Act to enable employers to temporarily vary work arrangements for employees receiving the JobKeeper payment in order to keep people employed. These amendments are slated to cease on 31 March 2021.
If an employee cannot be usefully employed for his or her normal days or hours because of changes to business attributable to COVID 19 or the employer believes the changes are necessary to continue the employment of its employees, an employer can direct an employee to, amongst other things:
There are also provisions covering agreeing to take annual leave at full or half pay. Employees do not have to comply with a direction if it is unreasonable. Consultation and notice obligations apply to the Employer. Also, an employer must pay the correct amount for the work undertaken. The temporary changes to the Fair Work Act do not remove or diminish existing protections under the Fair Work Act from unfair dismissal or discrimination.
The Commonwealth Government has introduced a Mandatory Code of Conduct for leases of commercial premises. NSW has passed legislation that gives legal effect to this code.
The Code applies to commercial tenancies including retail, office and industrial. The tenant must be an eligible business for the purpose of the JobKeeper programme and meet the relevant eligibility criteria.
The purpose of the Code is to provide temporary relief to tenants that are suffering financial stress due to the COVID 19 pandemic. It is based on the premise that the landlord and tenant will negotiate in good faith to reach an agreeable outcome and includes a number of principles, including a:
There are obligations on the tenant. These include to provide sufficient information and to remain committed to the lease.
Make sure you get the right advice and make the most of the Code. In the present commercial environment, taking this opportunity may mean the difference between staying in business and permanently closing down.