GETTING IT RIGHT
WITH YOUR EMPLOYEES (PART 3)
Unfortunately, employment relationships do not always work out – so how do you,
as employer or employee, stop things getting worse in that situation?
WORDS: LEON PONTE
his is the third and final instalment
of the ‘Getting it right with your
employees’ articles in the Legally
Fit series. The first two articles discussed
getting the hiring process right and things to
consider to give the employment relationship
the best chance to succeed.
Sometimes, however, despite the best
intentions, things just don’t work out.
Here we look at some of the issues
that should be considered to make
sure you (as employer or employee) do
not make things worse in an already
T
unfortunate situation. To read previous
articles in this series search ‘Legally Fit’ at
fitnessnetwork.com.au/resource-library.
Probation/minimum
employment period
It is a common misconception that employees
can be dismissed for any reason and without
notice or fear of reprisal during a probationary
or minimum employment period.
The Fair Work Act 2009 (FWA) provides
that in order for an employee to have an
‘unfair dismissal’ claim they must have
completed a ‘minimum employment period’.
The minimum employment period for an
employer with fewer than 15 employees
(small business employer) is one year, and
the period for an employer with 15 or more
employees is six months.
So an employer can just dismiss an
employee for any reason during that period,
right? Well, no, as discussed below under
‘General Protections/Adverse Action’.
The FWA also requires that an employer
give an employee written notice of termination
of no less than one week (or pay in lieu) during
the minimum employment period (unless the
termination is because of serious misconduct).
Longer notice periods apply if an employee has
worked with the employer for more than one
year. The Fitness Industry Award 2010 (Award)
also generally requires an employee covered
by the Award to give the same amount of notice
as an employer is required to give.
Casual
Another common misconception is that casual
employees can also be dismissed (for instance,
by just not giving them any further work) for any
reason. However, a casual employee will be
protected from unfair dismissal if the employee
was employed for the minimum employment
period, and had a reasonable expectation
of continuous employment, on a regular and
systematic basis.
A casual employee also has rights under
the General Protections provisions of the
FWA discussed below.
Unfair dismissal
In addition to having to complete the
minimum employment period, an employee
must be covered by an award or enterprise
agreement or earn less than the high income
NETWORK WINTER 2016 | 61