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Termination of Employment Convention, 1982 (No. 158) - Australia (RATIFICATION: 1993)

Article 4. Valid reasons for dismissal. In its previous comments, the Committee noted the concerns expressed by the Australian Council of Trade Unions (ACTU) over the fact that the Fair Work Act does not require Fair Work Australia (now renamed the Fair Work Commission), the tribunal for the determination of unfair dismissal claims under the Fair Work Act, to be satisfied that individuals selected for redundancy were fairly chosen. The Government provides in its report an example of a recent Fair Work Commission ruling taking into account the requirements for genuine redundancy, in which it was noted that it would constitute adverse action if a person was chosen for redundancy for an unlawful or discriminatory reason. The Committee invites the Government to continue to provide information concerning this provision of the Convention, including examples of court rulings taking into account the requirements for genuine redundancy.

Article 7. Procedure prior to or at the time of termination. The Government indicates that, in the case of dismissals, other than cases of summary dismissal, the Small Business Fair Dismissal Code specifies that the employee must be provided with a warning that his or her conduct or capacity to do the job is such that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem. In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. The Committee notes in this regard information regarding a case in which a dismissal was found to be not compliant with the Small Business Fair Dismissal Code with respect to providing the employee with an opportunity to respond to the reasons for his dismissal relating to work performance (Mr Friend v. Bennett Carroll Holdings Pty Ltd T/A Bennett Carroll Solicitors [2014] FWC 1916). The Committee invites the Government to continue to provide information on the application of the Small Business Fair Dismissal Code with regard to workers’ opportunity to defend themselves against the allegations made prior to termination.

Application of the Convention in practice. The Committee invites the Government to continue providing updated information on the application of the Convention in practice, including examples of court rulings concerning questions of principle relating to the application of the Convention.