NSW UD - small businesses are almost untouchable

[frederic]

Basically, my understanding is that a small business (<15 employees) can rid themselves of a worker for any reason, completely fabricated or otherwise, (barring blatant discrimination or serious misconduct), with any protocol whatsoever before 1 year of employment period is up, and the worker has no rights to stop this.

Is this correct?

Furthermore, if a worker is given notice of dismissal one day before 1 year of work, they will more than likely end up working more than a year, but this means didly-squat as far as rights go. Why should the period of employment not take into account work performed during the notice period when the actual dismissal is not deemed to have taken place until the last day of work is performed?

 

[Rod]

Do you have a specific issue or does your post just raise general concerns about the law?

Is this correct?

No. Other remedies are available not just unfair dismissal.

Why should the period of employment not take into account work performed during the notice period when the actual dismissal is not deemed to have taken place until the last day of work is performed?

Because this is the way the legislation is written. If you don't like it, you need to talk to federal politicians.

 

[frederic]

Hi Rod.

My specific issue is I have been dismissed in week 50 of my current employment contract, whereas if it were week 53 it would be a black and white unfair dismissal (perfunctory performance warning/meeting).

Furthermore, it is a small business (~10 employees), and the owner/manager has a history of exploiting contracts in this manner - dangling the carrot of a permenant position to extract work and build tolerance to excessive work, only to make it evaporate, move you on and replace you with someone else. Rinse and repeat.

It is not so much that I wish to retain my position anymore, but this person is clearly exploiting workers.

 

[frederic]

I may have something to go on.

In this position I am presumedly covered by the Professional Employees Award 2010, which states:

My highlighting. The only communication I have received thus far is a verbal indication that I am being dismissed for perfunctory performance issues and what could be described as operational change (moving my position overseas), and an emailed notice of employment termination not discussing any of these issues. I have made it known in writing that it is a shame a more consultatitive approach wasn't taken regarding the dismissal and been stonewalled.

How could this non respect of the award consultation clause affect the dismissal?

 

[Rod]

Furthermore, it is a small business (~10 employees), and the owner/manager has a history of exploiting contracts in this manner - dangling the carrot of a permanent position to extract work and build tolerance to excessive work, only to make it evaporate, move you on and replace you with someone else. Rinse and repeat.

It is not so much that I wish to retain my position anymore, but this person is clearly exploiting workers.

Yep, it happens. Just like there are poor employees, there are also bosses and employers who are bad/exploitative.

There is no law that says an employer has to be good.

While you can raise a FWC dispute under clause 10, I don't see that helping you or others.

How could this non respect of the award consultation clause affect the dismissal?

You have been given 2 reasons - poor performance (whether true or not), and organisational change. A smart employer would stay with poor performance as the reason, and also say they have consulted with you, thus they are in compliance with the award.

You may have a case for breach of contract but these actions are not cheap, and the risk is losing and paying the employer's costs.

 

[frederic]

Hi Rod, thanks for your input, greatly appreciated.

While you can raise a FWC dispute under clause 10, I don't see that helping you or others.

They only notified verbally of operational changes during the termination meeting. No written information, no measures to avert or mitigate, no consultation. Surely if there is no paper trail, they can say what they like, they have not complied with the award.

The aim of any dispute under clause 10 would be to have the original dismissal declared invalid, by which time 52 weeks of employment will have elapsed, and they could dismiss again if they so feel inclined. Is this an achievable objective?

It would thus require me highlighting the alleged breach of clause and them deciding whether they would like to fight that allegation or a FW UD down the track. Or they may decide that keeping me on is not such a bad idea afterall.

A smart employer would stay with poor performance as the reason

Dude! Who's side are you on?

 

[Rod]

You may be able to claim a breach of the award and go to the FCC.

But as mentioned above your chances are not good.

And just preparing you for what may happen.

 

[frederic]

If the employer offers to re-hire me on a seperate contract after performance based dismissal, surely my chances improve?

 

[Rod]

No. Well maybe, if the employer considers the dismissal to have no effect. Otherwise this is a new contract, new start date.