Australian Employment Law for Employers - Legal Right to Terminate Employee

There are three main issues relating to an employers right to terminate the employment of staff which are unlawful dismissal, unfair dismissal and redundancy :-

1. Unlawful Dismissal
   
   This relates to the Fair Work Act 2009 which covers a wide range of employment matters but in particular defines an unfair dismissal as termination of employment that is harsh, unjust or unreasonable. This protection is only available to staff who have been employed for longer than 12 months if there are less than 15 employees or longer than 6 months if there are 15 or more employees. Employers with less than 15 staff should pay particular attention to the Small Business Fair Dismissal Code. Remedies that are available to a sucessful employee include compensation and reinstatement in the event that the dismissal is determined to be unfair.
2. Unfair Dismissal
   
   This concept is defined under the Human Rights and Equal Opportunity Commission Act 1986 which makes it unlawful to discriminate against an employee or potential employee on the basis of a wide range of issues including sex, race, sexual preference, pregnancy, disability, religion and age. An aggrieved employee may take the matter to the commission and if successful may expect an award of compensation and an order for re-instatement. There are a number of other statutes that support this legislation including :-
   
   
   • Sex Discrimination Act 1984
   • Disability Discrimination Act 1992
   • Racial Discrimination Act 1975
   • Fair Work Act 2009
   • Workplace Relations Act 1996
   • Age Discrimination Act 2004
3. Redundancy
   
   The Fair Work Act 2009 indicates that all employees who have been employed for more than a year are entitled to receive redundancy pay in the event that the job is no longer available due to economic, market, structural or technological changes. The termination must be a genuine redundancy situation failing which it will be treated as wrongful dismissal with appropriate penalties and remedies available to the employee. In the case of financial difficulty, the employer is entitled to request a re-determination and in the event of the employers insolvency the employee can make a claim for payment to the government.

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Deed of Release

A deed of release is an agreement used to compromise an employment dispute on agreed terms and may be entered into at the time of, or shortly after notice to the employee of the termination of employment or it may be entered into after an alleged wrongful dismissal claim has been subsequently intimated in order to settle the dispute. A deed of release usually contains agreed terms whereby the employee relinquishes rights to make any future claim, often coupled with a confidentiality arrangement in exchange for a financial settlement by the employer.

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Specialist Employment Solicitors

Our employment solicitors represent employers in employment disputes. If you would like free initial advice from an expert commercial lawyer just call the helpline. We will take basic details over the telephone and advise there and then on liability. If after speaking to us you decide to go no further, you will not be charged for any initial advice.