Would you like to increase your business productivity and decrease internal work disputes? Streeterlaw provides this overview of the employment dispute resolution process relating to small and medium-sized enterprises and explains what you need to do to increase your productivity.
Increasing productivity and setting expectations
All documents, policies, agreements, obligations and responsibilities must be clearly defined for each role. New employees need to understand from day one what their employer expects of them. This also applies to probation, in terms of documenting the process, setting expectations and ensuring the employee understands what he or she needs to do to be successful in passing probation.
A structured process and procedure for new employees ensures that they have “ticked” the Company Risk Management and Compliance Policy and are aware and equipped with the tools and know-how to become a valued employee.
Departing employees (due to termination or redundancy) must also be part of an outgoing procedure that ensures all company property has been returned, the employee has been paid the appropriate entitlements and he/she has been made aware of the reasons for termination or redundancy. The outgoing employee must also be given an opportunity to ask any appropriate questions or to respond. This process will give peace of mind to the supervisors and employers.
Start the way you want to finish
A well-documented and concise incoming process will provide more certainty for disgruntled outgoing employees. It will also ensure that the employer is not overwhelmed with the task of dealing with outgoing staff and will be able to respond quickly in the event of serious misadventure (such as an employee stealing company clients or confidential information), which requires urgent attention.
Unfair Dismissal Application
Employees who feel as if they have been unjustly terminated or dismissed usually have only 21 days (there are some exceptions) to file an application with the Fair Work Commission. Upon receipt of the application, employers are to provide a detailed response.
Employers should clearly understand their duties and obligations to employees. Small businesses with less than 15 employees have different obligations. (If you are unaware of what your duties and responsibilities are in that respect, please contact us.)
Termination of employment
Broadly speaking, the reasons for termination are:
- Termination – a gross or serious breach of company policies or procedures;
- Termination – a collection of a number of smaller breaches; or
- Redundancy. This is a niche area that requires serious consideration before being issued. Importantly, it is when the employee’s job is made redundant (not the employee themselves). At this point the employer has to make and provide redundancy pay (also known as severance pay). The redundancy pay calculation is determined based on the Employment Agreement, as well as the period of continuous service with the employer. The continuous service is based on the length of time they are employed by the business and it does not include unpaid leave.
Redundancy – unfair dismissal
Employees who consider that the redundancy is not a genuine one or that they have been unfairly dismissed, may consider filing an application with the Commission for unfair dismissal, unlawful termination or discrimination. Therefore, it is important for employers to ensure that the correct notice has been provided and the final entitlement pay has been provided. It is highly recommended that this is calculated and prepared well in advance of providing the correct notice to the employee who is exiting. This will enable the employee to determine whether their termination payment provides sufficient financial support while searching for a new job.
How the Commission deals with an unfair application
Employees have 21 days from the date they have been notified of their dismissal to file an application with the Commission.
The employer, in turn, has to file a response. Once the response is filed, a Conciliation Conference will often be set down with a conciliator who is an independent party who does not provide a determination regarding who is right or wrong. The conciliator does, however, meet with the parties to “conciliate” and attempt to resolve the dispute.
If the matter does not resolve, a timetable may be set down for evidence to be provided in support of the application (if required) or the matter may proceed straight to adjudication.
Adjudication is similar to a hearing in that a final determination will be made in respect to the particular employee’s circumstances.
If you are concerned about your processes, systems or employment agreements or you have identified an employee whose performance or position is being re-considered, please contact Streeterlaw’s Specialist in Commercial Litigation Lawyers on 8197 0105 to receive confidential advice. Alternatively, we can be contacted via email on advice@streeterlaw.com.au
