There are different rights and obligations that arise for both the employer and employee at the time of ending the employment. We can advise clients on the rules and regulations regarding dismissal, notice and final pay so that clients can know their options. There are also various rights and obligations when a job is made redundant or when a business is bankrupt.

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工作场所与雇佣

Unfair dismissal - immediate termination

Q: I worked as a waiter at a restaurant for about two years. Yesterday, my employer suddenly said, "did you steal cash from the cash register last night? Surveillance cameras also caught you. You are fired. Get out now." I was fired without being given any opportunity to explain my situation. Is this an unfair dismissal? (a waiter, 25 year old male)   A: In principle, if an employee commits a serious misconduct in connection with his or her job, the employer can dismiss the employee immediately without notice. However, it is sometimes difficult to determine what action would result in an immediate dismissal. Often issues arise whether there is evidence proving the serious misconduct, and for that reason, an employee sues for unfair dismissal. Such theft is a “Serious Misconduct” under the employment law, which can be justified as a reason for immediate dismissal. However, if the employee was falsely accused and fired unilaterally without being given the opportunity for clarification, this would likely be an unfair dismissal. In this case, the employer should show the CCTV footage to the employee, and gives the opportunity to explain its reasons. Once the theft is confirmed, then they need to decide to terminate their employment contract. Furthermore, "Serious Misconduct" includes not only theft and embezzlement, but also fraud, violence in the workplace, drunkenness, use of illegal drugs, violation of work regulations, conducts that threaten the safety of the workplace and that significantly impairs the productivity and reputation of the company. There are cases held to be serious misconducts where an employee sent emails with abusive words to their colleagues and business partners. However, if your company is a “Small Business” with less than 15 employees, Australian employment law provides a provision that will make it easier to terminate their employment contract. The same is true of the immediate dismissal of an employee due to a serious misconduct. It is presumed that for a small business, a serious misconduct has been committed if there is a sufficient suspicion as to an illegal conduct of an employee. There is a case that discussed whether an employer sufficiently investigated the serious misconduct and whether an employee was given a reasonable opportunity to explain its situation. In that case, the court held that it was not a unfair dismissal on the ground that a small business is not required to investigate an employee’s conduct as if other big company, when an employee was fired for suspicion of serious misconduct Moreover, in cases where an employee who was taken to a hospital was dismissed due to excessive use of illegal drugs outside of working hours, despite such dismissal being normally unfair, that was justified because of its small business status. In the current case, if the restaurant is a small business and the surveillance camera footage satisfies “sufficient suspicion”, it is likely that an immediate dismissal be justified.