22 Feb I was Dismissed by a Small Employer. What Rights do I Have?
The Fair Work Act in Australia governs the legal employment relationship between small businesses and an employee. If you have been dismissed by a small business, there are certain rules an employer must follow and if they don’t you will be entitled to seek compensation under the Fair Work Act 2009 CTH.
The Small Business Fair Dismissal Code (“Code”) dictates how small businesses have to act with respect to their employees in Australia. A small business is defined under the code as one that has fewer than 15 employees. These employees need to be employed on a regular and systematic basis in order to form part of the 15 employee headcount.
If you believe you have been unfairly dismissed from a small business employer, you cannot make a claim unless you have been employed in the business for at least 12 months.
There are certain procedures the employer must follow when terminating an employee. For example, in any discussion with the employer regarding dismissal, you are entitled to request a support person attend.
In addition, if the below factors come into play, it may constitute grounds for a claim against a small business employer for unfair dismissal, if the employer has cited poor performance or conduct issues with your employment:
- The employer should clearly warn the employee verbally or in writing that their performance or conduct was unsatisfactory and that an improvement was necessary or they would be dismissed.
- The employer should provide a reasonable period of time to improve their performance before being dismissed.
- If there was inadequate training provided by the employer.
- If the employee suddenly improved their performance but was still dismissed.
- Did the employer give a reason for the dismissal and provide an opportunity to respond.
- If the employer kept records of the warnings or discussions surrounding performance and conduct.
Generally speaking, if you are employed by a small business with fewer than 15 employees then you are not entitled to a redundancy payout. There are specific circumstances in which you will be entitled to redundancy pay. These circumstances arise if you are an employee under an award or enterprise agreement and the award or enterprise agreement states redundancy pay is mandatory.
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