Understanding Workchoices' for the TCF Industries
Termination grounds
Generally speaking, disputes as to the termination of employees fall out of the following scenarios:
* Where the employer terminates the employment of the employee due to an allegation that the employee has breached their contract with it and the employee alleges that not all their entitlements have been paid out;
* Where an employee alleges that the employer has wrongly terminated their employment either because the termination was (for some reason) unfair or it was otherwise unlawful.
Remedies
Remedies to employees arising out of termination for breach of contract including failure to pay out all their outstanding entitlements (such as outstanding wages, annual leave, long service leave and payment in lieu of Notice)
In order to make sure that the employee is entitled to the above, an employer will need to check the employee's contract and the employee's entitlements under the Workplace Relations Act (1996).
An employer should be aware that an employee who maintains a claim in respect of these entitlements can bring an action in the Federal Court of Australia or the Federal Magistrates' Court to recover the unpaid entitlements. However, before that takes place, an Application to the Court cannot be made unless the employee obtains a certificate from the Australian Industrial Relations Commission (AIRC) that it has attempted, and failed, to settle the matter by conciliation. An employee can also sue in the Magistrates' Court.
Finally, if the termination entitlement arises out of a Workplace Agreement or a collective agreement, an aggrieved employee may bring an action in either the Federal Court of Australia, the Federal Magistrates' Court, the County Court or the Magistrates' Court to recover the unpaid money.
Unfair termination
Employees who maintain that they have been unfairly terminated can apply to the AIRC for relief. However, employees must be qualified in order to bring these claims. Briefly, those now excluded under WorkChoices from bringing an unfair dismissal claim include:
* Those who have not completed a six month qualifying period of employment;
* Employees who have been terminated for operational reasons (i.e made redundant);
* Employees whose employer employs fewer than 100 employees;
* Employees who earn more than $98,200 (or such amounts as altered annually by Indexation) and are not employed under award-derived conditions;
* Employees on fixed term contracts;
* Casual employees engaged for a short period.
However, as with an allegation of unpaid entitlements, the AIRC must first attempt to settle the matter by conciliation. If the matter does not settle, the employee can then elect to have the matter arbitrated.
The primary remedy available to the employee is reinstatement to the employee's former position. However, if that is not appropriate the AIRC can instead award compensation capped to a maximum of six months of the employee's earnings based on the previous twelve months. There can be no claim for shock, distress or humiliation caused to the employee by the manner of termination.
Termination for an unlawful reason
An employee may make a claim for relief in the Federal Court of Australia or the Federal Magistrates' Court for breach of the unlawful termination provisions of the Act. However, an employee first needs a Certificate from the AIRC that it has attempted and failed to settle the matter by conciliation. Therefore, in effect, an Application must be first made to the AIRC so that it can conciliate the matter. If that fails, court proceedings can then be issued.
The employer should be aware of the usual categories of unlawful reasons to terminate which are:
* Temporary absence of work due to illness or injury;
* Parental leave;
* Race;
* Color;
* Sex;
* Age;
* Physical or mental disability;
* Marital status or family responsibilities;
* Religion;
* National extraction;
* Trade Union membership;
* Participation in Trade Union activities.
Remedies available include reinstatement and/or compensation capped at a maximum of six months of the employee's earnings based on the previous twelve months.
Conclusion
It is important for employers in the TCF industry to understand that when considering termination of employment they should consider all the remedies that are available to the employee and that in terminating the employee that the termination was not unfair or for an unlawful reason.