Employment Law – FAQ

Employment Law Articles Australia

Employment Law Scenarios in Sydney

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.