Money Matters Medical Markets Fair or Foul
Fair or Foul
Friday, 01 August 2014
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It’s a complex process and, if not managed well, the consequences can be serious. Fairness is a subjective concept and often depends on where you happen to be standing at the time.

And. if you’re an employer based in WA, there’s an added layer of complexity compared with the rest of the country and it may impact on the determination of a what is deemed to be a ‘fair‘ dismissal.

It all hinges on the Constitutional Corporation (CC) classification (see below); a private sector employer is subject to either state or federal jurisdiction depending on which side of the CC line they fall.

Employees in WA

State legislation pertaining to unfair dismissal comes under the umbrella of the following criteria:
•    employed under the state system
•    earing less than $145,800 (high income threshold) or covered by an award/industrial agreement.

Substantive Fairness

In essence, an employer must ensure that any dismissal is procedurally and substantively fair. In WA there is a further caveat in that an employer must not exercise their legal right of dismissal in a harsh or oppressive manner.

Valid Dismissal

If an employee makes an unfair dismissal claim it will be assesssed by a tribunal. The reason for termination must be ‘sound, defensible and well founded‘. In a gerneral sense there are only three valid reasons for an employer to dismiss an employee:
•    capacity (poor performance)
•    conduct
•    genuine redundancy

It’s worth noting that summary dismissal should only be enacted if an employee has engaged in serious misconduct. This infers that continued employment during the period of notice would be both untenable and unreasonable.

One aspect that may be pertinent for a medical practice relates to the Small Business Fair Dismissal Code. Any dismissal from an organisation that employs fewer than 15 people must fall within the guidelines of the code.

Unlawful Termination

•    temporary absence due to illness/injury
•    discriminatory grounds, such as race or gender
•    filing a complaint against the employer
•    membership (or non-membership) of a trade union

Applying for an Unfair Dismissal Remedy

An application must be lodged within 21 days of the actual dismissal. The employee will incur a fee of $67.20

Both parties coming before the Commission must generally pay their own costs. However, an order may be made for either the employer or the employee to pay costs if the claim is deemed to be:
•    frivolous, vexatious or made without reasonable cause
•    or had no reasonable prospect of success.