In a procedural change that we expect one day will become second nature when dismissing a staff member, the Fair Work Act will from 1 January 2010 require an employer to provide the employee with written notice of the terminationwhich cannot be earlier than the day the notice is given.
Whilst there are some important exceptions to this National Employment Standards (NES) rule (see further below), this change will no doubt have a profound impact on the procedures around dismissing staff.
The exemptions where written notice won’t be required are –
(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
(b) an employee whose employment is terminated because of serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
(e) an employee prescribed by the regulations as an employee to whom this Division does not apply.
ERS Comment – ER Strategies will update the Online HR Resources to provide documentation that satisfies this important procedural step before the Fair Work NES changes on 1/1/10. We expect many ex-employees will seek to rely upon this section to argue their employer didn’t dismiss them with the correct procedure. We wonder what will happen, for example, if it is alleged the employer has constructively dismissed the employee, in which case no notice is likely to have been issued. Will the dismissal be ruled invalid, or alternatively will the employer be taken to have just breached the NES?