Question

BSBHRM507: Manage separation or termination (Participant Guide) ouestion 4x Summarise industrial relations legislation and outline how a determination is made as to whether dismissal is unfair under legislation. (150-200 words)

Answer 1

Industrial relations are the relationships between the management and employees of an industry. Industrial Relations look at the relationship between management and workers, particularly groups of workers represented by a union. Industrial relations pertain to the study and practice of collective bargaining, trade unionism, and labor-management relations.

The US state influences industrial relations beyond its role as an employer in two main ways:

• Direct regulation of terms and conditions of employment
• Regulation of the manner in which organised labor and management relate to each other

Federal and state wage and hour laws provide for minimum levels of pay and overtime rates, although many workers are excluded from the operation of these laws. ‘Employment at will’ operates in the US – employers do not have to provide just cause for dismissal, reasonable notice or severance pay on dismissal of an employee.The National Labor Relations Act (also called the NLRA or Wagner Act) provides a structure of rules establishing employee rights with respect to collective action.Some of these rules include union certification (by secret ballot) and the requirement for certified unions and employers to bargain in good faith. There is debate over whether union certification procedures unfairly restrict the right of workers to organise into unions. Employment disputes in the US are resolved through the general court system or agreed arbitration procedures and not through specialist tribunals (results are high costs, long waiting times, greater variability in outcomes).Diversity in US employment relations is high and increasing due to growth in non-union employment and the wide variety of union and non-union employment and pay practices

• There is wide variation in recent collective bargaining practices and outcomes
• Union revitalization has resulted in various organizing and bargaining strategies as unions attempt to extend membership in the face of increasing income inequality and international pressures
• The Act is the piece of legislation that covers the federal industrial relations system and sets out the minimum workplace conditions and protections for employees and it also sets out certain employer obligations. The Act applies to the majority of workplaces in Australia.
• An unfair dismissal application can be filed with the Fair Work Commission (the FWC). The FWC is the federal workplace relations body that has been created to regulate most workplace matters. Once an application is filed, the FWC will then deal with the matter.
• The purpose of this type of application is to provide (where possible) a remedy to employees, but it also provides a framework that enables businesses and employees to deal with these applications in a flexible, efficient and informal manner.
• To be eligible to make an application, first and foremost, an individual must be an employee of the employer. That is, there is likely to be a contract of employment between the individual and the employer, either oral or in writing. In certain circumstances, an individual who is considered to be an independent contractor, may actually be an employee. If this is the case, then the FWC could have jurisdiction to deal with the unfair dismissal application. Persons who are volunteers or serving a vocational placement are generally excluded from making an application as they are not considered to be an employee

Unfair dismissals

A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:

• Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
• Religious or political opinions
• Legal proceedings against an employer where you are a party or a witness
• Race, color, sexual orientation, age or membership of the Traveler community
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or force majeure leave
• Unfair selection for redundancy
• Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014

Redundancy

Under the unfair dismissals legislation, redundancy is considered to be a fair reason for dismissal. However, you may have grounds for complaint if you were unfairly selected for redundancy or consider there was no genuine need for redundancy. Your dismissal may be considered unfair unless your employer can prove there was a genuine redundancy situation and that they followed fair procedures.

Rules

To qualify to bring a claim for unfair dismissal, you must meet the following requirements relating to time limits, length of service, employment status and fact of dismissal.

Time limits

You must start your claim for unfair dismissal within 6 months from the date of the dismissal. If you have reasonable cause to delay, you may be allowed to extend this period for up to 12 months from the date of dismissal. However, the reason must be strong and convincing – saying you did not know the law will not be enough.

Under the Unfair Dismissals Acts, the date of your dismissal is the date that the notice you are entitled to expires. If you have worked at least 13 weeks for your employer, you are entitled to a statutory minimum period of notice. Your written contract of employment may set a longer period of notice.

Length of service

Normally you must have at least 12 months’ continuous service with your employer before you can bring a claim for unfair dismissal. Continuous service is generally broken only if the employer dismisses you or you terminate your employment.

However, there are important exceptions to this general rule on 12 months’ service. Even if you have served for less than 12 months, you may bring a claim for unfair dismissal where you are dismissed for:

• Trade union membership or activity
• Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or birth
• Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001
• Making a protected disclosure under the Protected Disclosures Act 2014

Dismissal based on any of the following nine grounds for discrimination is illegal under employment equality legislation:

• Gender
• Civil status
• Family status
• Age
• Disability
• Religious belief
• Race
• Sexual orientation
• Membership of the Traveler community

For example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal under employment equality legislation. See ‘How to make a complaint’ below.

Employment status

To be an employee under the law, you must be working for an employer under a ‘contract of service’. This is different from a ‘contract for services’, where a contractor or self-employed worker performs a service in return for payment. If you work for an agency, you can generally bring a claim under the Unfair Dismissals Acts against the employer who has hired you from the agency. See our information on agency employees.

The fact of dismissal

You must have been dismissed in order to bring a claim. The one exception to this is in a case of constructive dismissal, where you resign but claim that your employer’s conduct towards you forced your resignation.

If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair. This is a matter for your employer to prove.

Who cannot claim for unfair dismissal?

The Acts do not apply if you are:

(a) An employee who is under 16, or an employee who has reached normal retiring age or who is not covered by the Redundancy Payments Acts because of your age

(b) Working for a close relative in a private house or farm, where you both also live in the same house or farm

(c) A member of the Defense Forces

(d) A member of the Garda Síochána (since 4 July 2006, the Acts apply to most State employees)

(e) Undergoing full-time training or apprenticeship

(f) An officer of education and training boards, a county or city manager, or the chief executive of the HSE

(g) Employed under a fixed-term/specified-purpose contract – this contract will be in writing and signed by both parties and will state that the Acts do not apply if you are dismissed only because the fixed-term contract has expired or the specified purpose has been completed

(h) An employee who works outside the State (unless, while the contract is in force, you are resident or domiciled in the State or are domiciled in the State and your employer is resident in the State)

(i) A statutory apprentice who is dismissed within 6 months after beginning your apprenticeship or within one month of completing the apprenticeship

(j) An employee who is on probation or undergoing training for up to a year at the beginning of employment, where the duration of your probation or training is specified in the written contract of employment

(k) An employee who is dismissed while training to qualify or register as a nurse or other specified para-medical employment

If point (b), (e), (i), (j) or (k) applies to you, you may still claim for unfair dismissal where the dismissal results from:

• Pregnancy, giving birth or breastfeeding
• Availing of rights under the Maternity Protection Acts 1994 and 2004
• Availing of rights to adoptive leave or additional adoptive leave, paternity leave, parental leave, force majeure leave or carer’s leave

If point (a) or (d) applies to you, you may still claim for unfair dismissal where you are dismissed for taking parental leave, force majeure leave or carer’s leave.

If point (d) or (e) applies to you, you may still claim for unfair dismissal where you are dismissed for making a protected disclosure.

You cannot claim under the Unfair Dismissals Acts where your employer informs you in writing when you start work that your employment will end when another employee comes back to work after taking maternity leave, adoptive leave, paternity leave or career’s leave.

Adjudication decision

Once your employer has sent you a written statement explaining the reasons for your dismissal, your claim can continue to the next stage. At this point, your complaint will be referred to a Workplace Relations Commission (WRC) adjudication officer for a hearing to decide whether the dismissal was fair.

The adjudicator has the power to make witnesses attend a hearing and give evidence in cases taken under the Unfair Dismissals Acts 1977-2015. This power came into effect with the passing of The Employment (Miscellaneous provisions) Act 2018.