We recommend developing a mind map for addressing an unfair dismissal case under the Fair Work Act 2009 (Cth) involves understanding various key elements and procedural steps. Here's a detailed breakdown that you can use to structure your mind map:
1. Eligibility Criteria
- Employee Status: Must be an employee (not a contractor).
- Minimum Employment Period: Must have completed the minimum employment period (one year for small businesses, six months for others).
- High-Income Threshold: Whether the employee is below the high-income threshold or covered by an award or enterprise agreement.
2. Grounds for Claim
- Harsh, Unjust or Unreasonable: Determination whether the dismissal was harsh, unjust, or unreasonable.
- Valid Reason: Whether there was a valid reason related to the employee's capacity or conduct.
- Notification and Opportunity: Whether the employee was notified of the reason and given an opportunity to respond.
3. Procedural Fairness
- Warning: Whether the employee was given a warning about unsatisfactory performance if applicable.
- Representation: Opportunity for the employee to have a representative during disciplinary meetings.
4. Filing a Claim
- Application: Filing an application to the Fair Work Commission.
- Time Limit: Application must be lodged within 21 days of the dismissal becoming effective.
5. Conciliation
- Voluntary Process: An attempt to resolve the dispute through conciliation before it goes to a hearing.
- Role of Conciliator: Helps both parties reach an agreement but does not make a decision.
6. Hearing
- Presentation of Evidence: Both parties present evidence and arguments.
- Decision: Fair Work Commission makes a decision based on the merits of the case.
7. Remedies
- Reinstatement: The primary remedy, returning the employee to their former position.
- Compensation: If reinstatement is not appropriate, compensation may be awarded.
8. Appeals Process
- Appeals: Decisions can be appealed on grounds of error in law or significant factual error.
This structure outlines the major steps and considerations in an unfair dismissal claim under the Fair Work Act 2009, serving as a comprehensive guide for constructing a mind map.
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