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Some Tips When Dismissing An Employee From A Termination Of Employment Lawyer    By: Nicholas Marouchak
In Australia, if an employee is terminated unlawfully, then the business can be exposed to various types of claims including unfair dismissal, general protections, or discrimination claims. Therefore, it is important to make sure that the procedures are followed correctly when dismissing an employee. Valid Reason An employer must have a valid reason to dismiss an employee. An employee should be notified of the reason for their dismissal before their employment is terminated. It is best practice to either sit down with the employee and advise the employee of the reason, or send written correspondence to the employee setting out the reasons before the dismissal occurs. An often relied on reason for termination is redundancy. Redundancy occurs when the employee's position is no longer required to be performed by anyone. Redundancy is about removing the position and not about removing the employee. The business must also ensure that the redundancy is a genuine redundancy and not a sham redundancy. The business must also ensure that they consult with the employee beforehand and also look for alternative work that the employee may be suited to perform before terminating the employee for redundancy. Another reason is dismissal for poor performance. Before an employee is dismissed for this reason, an employee must be given a reasonable opportunity to improve. This often means that the employee should be put on a performance improvement plan, and the employee must be advised on what they are doing wrong and how to improve it. A business should not act with too much haste in terminating an employee who is performing poorly. However, if the employee has been with the business for less than six months, then the employee is not covered by unfair dismissal laws, and their employment can be terminated without giving the employee a proper opportunity to improve. This often is applicable in cases where the employee is on probation. However, if the business is relying on this type of dismissal, it is important to ensure that this dismissal only relates to performance and it does not relate to any other issue which may be unlawful. For example, it is unlawful to terminate an employee because they have made a complaint regarding their employment (which is known as exercising your workplace right). Another common reason for termination is misconduct. Misconduct can take various forms and can be further classified into serious misconduct or regular misconduct. Serious misconduct is usually an act that is done intentionally, and is often more than just a mere error of judgment. It is misconduct of such a serious nature that it would be unreasonable to continue the employment relationship. Serious misconduct includes things such as stealing from the employer, swearing at the employer, or assaulting the staff. Regular misconduct includes other wrongdoing by the employee. Serious misconduct allows the employee to be terminated without notice. In the case of regular misconduct, the employee must be given notice before they are terminated. Opportunity to Respond The employee must be given an opportunity to respond before they are dismissed. This is usually done by having a meeting with the employee and giving all the proposed reasons the business intends to rely on to terminate their employment. In other words, give the employee an opportunity to have their say. This can be done at a meeting, or alternatively, this can be done after the meeting, where the employee puts in a written response addressing the proposed reasons. The business should not make the definitive decision to terminate the employee before they have given the employee a chance to respond. Document Everything It is important that the business documents everything. The reason for this is that if the matter proceeds to a hearing, then it can be difficult to establish what was said if it is not in writing. After each important meeting, it is good practice to send a summary of what occurred at that meeting to the employee. Support Person If the employee requests a support person, then the business must allow that support person to be present at the meeting. It should also be noted that the support person is not an advocate of the employee but simply attends for moral support. The support person is not authorised to speak on the employee's behalf.(read entire article)(posted on: 2017-05-24)
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The Advantages Of Lodging A General Protections Claim – A Guide By Adverse Action Lawyers, Perth    By: Nicholas Marouchak
If an employee has had their employment terminated, an employee can commence various claims arising from the dismissal, including a general protections claim (also known as an adverse action claim), an unfair dismissal claim, or a discrimination claim. This article explores the advantages of commencing a general protections claim over an unfair dismissal claim. Section 725 of the Fair Work Act 2009 specifies that a person must not commence, among other things, a general protections claim and an unfair dismissal claim at the same time. This forces a dismissed employee to choose one or the other. We often advise dismissed employees who have the option of making both claims. If you are faced with the choice of commencing both an unfair dismissal claim and general protections claim, which one do you choose?Generally speaking, it is more advantageous to commence a general protections claim for the reasons mentioned below. No Compensation Cap A general protections claim does not have a limit on the amount of money that a person can receive if successful in their claim. While an unfair dismissal claim does have a maximum compensation cap of six months' salary or wages, provided the amount is no more than 50% of the high-income threshold (which from1 July 2016 is $138,900); therefore the maximum compensation in unfair dismissal claims is $69,450. Generally, the losses that an employee suffers arising from dismissal include lost income during periods of unemployment, lost income arising from missing out on future promotion opportunities, and losses arising from accepting an alternative lower-paying position found after dismissal. Under the unfair dismissal system, a dismissed employee often misses out on recovering all these losses. Under the general protections system, a dismissed employee can recover their entire lost income losses without it generally being reduced. Statistically, damages for general protections claims are higher than for unfair dismissal claims. No Onerous Prerequisites Unfair dismissal laws have certain qualifying provisions which must occur before the dismissed employee has a right to lodge an unfair dismissal claim. The first such prerequisite includes a minimum period of service, which is either six months or 12 months, depending on how many employees a business has. The second prerequisite is that the employee cannot earn more than the high-income threshold(which from 1 July 2016 is $138,900) unless the employeeis covered by modern award or enterprise bargaining agreement. Thirdly, independent contractors do not have the right to lodge an unfair dismissal claim, whereas independent contractors do have the right to lodge a general protections complaint. Fourthly, casual employees do not have the right to lodge an unfair dismissal claim unless they worked on a regular and systematic basis,whereas casual employees do have the right to lodgea general protections claim, irrespective of whether they worked on a regular and systematic basis or not. The above restrictions do not apply to general protections complaints and, therefore, the general protections system is open to more people than the unfair dismissal system. You Can Recover Penalties Under the unfair dismissal system, a successful employee is only entitled to compensation at the above capped amount, and also to reinstatement in limited circumstances. Under the general protections provisions, a successful litigant is entitled to compensation as well as the ability to have civil penalties imposed against the business. A civil penalty is a further payment that the business is required to pay as a penalty for their breach of the general protections laws. The current maximum penalties are $54,000 for corporationsand$10,800 for individuals. This penaltiesapply for each breach. This penalty is usually paid to the person who succeeds in the claim. There are no such penalties available in the unfair dismissal system. You Can Claim Damages for Distress, Anxiety and Depression Under the unfair dismissal system, a successful litigant cannot recover compensation for their hurt feelings, anxiety, humiliation, or depression which arose from the dismissal. Under the general protections system, a successful litigant can recover these types of damages. We often see employees experiencing anxiety, depression, and stress because of the manner in which they were dismissed. The Reversal of the Onus of Proof Under the unfair dismissal laws, an employee has the responsibility of proving their case. The employee has the ‘burden of the proof'. Under the general protections laws, provided the person commencing the claim raises some preliminaryfacts to support their claim, the business has the burden of proving that they did not breach the general protections laws. Therefore, the responsibility of proving the case rests on the business and not on the person commencing the claim. This is an advantage in litigation because if the business is not able to discharge their burden of proof, the person commencing the claim will be successful. Please contact our general protections claims lawyers if you have any questions about this article.(read entire article)(posted on: 2017-05-24)
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Detective Agency In Delhi Is Getting Popular These Days    By: Season21 Detective Agency
When you feel something is doubtful around you, whether in a relationship or in your professional life then you should hire professional detective agency because they are capable to solve your problem easily with their deep investigation experience.(read entire article)(posted on: 2017-05-23)
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Contemplating A Divorce? Why You Need A Divorce Lawyers    By: V. Wayne Ward
Without an expert divorce lawyer that understand the legal framework surrounding this issue, there are possibilities of complicating the matter even more.(read entire article)(posted on: 2017-05-23)
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The Role Of A Criminal Defense Lawyer    By: Chris Lucero
When you are charged with a crime, a suspect in a criminal investigation, it's best to protect yourself by hiring an experienced criminal defense attorney in Albuquerque, NM.(read entire article)(posted on: 2017-05-23)
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Now You Can Hire Best Family Lawyer In Chandigarh    By: Lexlords
When it comes to law, one of the most hard and personal attorneys out there are those who specialize in the regions of family law.(read entire article)(posted on: 2017-05-23)
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Share Purchase Agreement Sample    By: Jack
A share purchase agreement (SPA) is executed by and between sellers of shares and its purchasers or / and incoming investors.(read entire article)(posted on: 2017-05-22)
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Model Escorts Service In Noida 9582244063 Noida Escorts Service    By: Anupkr5005
We are here to fulfill your desire and make you feel pleasant. You are among those individuals, where some sorts of happiness have turned.(read entire article)(posted on: 2017-05-22)
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Housewife Escorts Service In Noida 7999999362 Noida Escorts    By: Anupkr5005
You have never imagined this before, now in Noida you get foreigner Escort. If you living in Noida, you are not only experiencing the truly(read entire article)(posted on: 2017-05-22)
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The Roles And Responsibilities Of A Personal Injury Attorney    By: Daniel Estes
Personal injury attorneys in Albuquerque and Rio Rancho have their work cut out for them. Although these legal professionals are most closely associated with car crashes, motorcycle accidents, and semi truck collisions, their areas expertise are much more broad.(read entire article)(posted on: 2017-05-22)
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