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Employers who are trading corporations
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Employers who are not trading corporations e.g sole traders and partnerships)
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Commonwealth Workchoices law applies:
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New South Waleslaw applies:
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An employee can be either reinstated or paid the lower of up to 6 months compensation or $53,200 if termination was harsh, unjust or unreasonable ( i.e. unfair)
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An employee can be either reinstated or paid up to 6 months compensation if termination was unfair
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Exceptions:
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Exceptions:
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Employers employing 100 or less employees are exempt from unfair dismissal claims
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Non award employees earning more than $106,400 pa
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Employers employing more than 100 employees:
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Termination for genuine operational reasons ( i.e redundancy)
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Non award employees earning more than $106,400 pa
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Casual employees
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Probationary employees
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6 month qualifying period
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Fixed task employees
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- apprentices or trainees;
- independent contractors;
- employees on a 3 month probation period if determined in advance;
- some casual employees;
- employees on contracts of employment for a specified period of time less than 6 months;
- employees engaged under a contract of employment for a specific task.
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An employee can claim that his or her contract was unfair and Court can impose new terms ( S106 IRA): Exceptions: Employees earning more than $200,000 pa
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What is unfair dismissal?
Employer must show procedural fairness: employee notified/warned of complaint. Employee given an opportunity to defend claim or improve performance/conduct. Employee warned of consequences if further complaint.
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How much notice must be given?
Based on length of service
Years of service Period of notice
age <45 >45
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Up to 1
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1 week
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nil
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1-3
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2 weeks
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3
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3-5
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3 weeks
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4
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> 5
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4 weeks
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5
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Workplace Relations Act
Where > 15 non- award employees
Age <45 > 45
Years of service Severance payment
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< 1
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nil
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nil
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1-2
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4 weeks pay
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5
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2-3
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7
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8.75
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3-4
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10
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12.5
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4-5
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12
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15
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5-6
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14
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17.5
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6+
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16
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20
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This is a summary guide only and there is detail in the law to be examined for each situation.
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Please contact Tony McMinn on 9957 4501 to discuss any aspect relating to termination of employment.
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