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Don't rush to terminate an employee during their probation period

It's a common misconception that terminating an employee's employment during a probation period provides employers with immunity against any subsequent legal claims by the terminated employee. While, in general, this will apply for unfair dismissal claims, as the following case demonstrates, employers may be exposed to other claims, for instance a general protections claim, where hasty decisions to terminate are made.  BACKGROUND Under the Fair Work Act 2009 (the Act), an employee is protected from an unfair dismissal if they have been employed for at least the "minimum employment period".  The minimum employment period is one year for small business employers (employers with 14 or less employees) or six months for employers with 15 or more employees.  The minimum employment period applies regardless of any probationary period which may be stipulated in the employee's contract of employment.  There is no such minimum empl...

10 November 2015

FWC Annual Report 2014-15

The Fair Work Commission (FWC) published its 2014-15 Annual Report (the Report) on 28 October 2015. There are a number of noteworthy points from the Report: Since August 2015, s.365 general protections applications started being conducted by conciliators in a telephone conference, like unfair dismissal conciliations, instead of conferences conducted by members in person. This previously only applied to matters lodged in QLD, WA and ACT.  The Agreements Pilot will be expanded to more include agreements. This involves a triage process where an administrative team undertakes the preliminary analysis of enterprise agreement approval applications before sending the application with a report to a member for decision. This currently applies to all applications in WA, TAS and ACT and applications in the building and construction industry in VIC. There were 1,743,653 unique visits to the FWC website which is a 15.5% increase from the...

5 November 2015

Officer's duties and WHS - how far does the ripple extend?

Who is liable as an "officer" has been the subject of some contention under the harmonised Workplace Health and Safety (the WHS) legislation which currently operates in all states and territories other than Victoria and Western Australia. A recent decision of the ACT Industrial Court provides some welcome guidance on this question. Background Munir Al-Hasani was engaged by Kenoss Contractors Pty Ltd (Kenoss) as its Project Manager and managed a number of projects for Kenoss. On one particular project, Kenoss had two available sites for the storage of material to assist it in undertaking nearby road resurfacing works, however one of those sites, the Boldrewood Street site, had been identified as unsuitable for use due to low hanging electrical wires. Although fenced and signposted the Boldrewood Street site was unlocked. A truck driver engaged by a contractor to Kenoss made a delivery to the Boldrewood Street site despite being directed ...

16 October 2015