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South Australia Executive Unfair Dismissal - Adelaide Solicitors - SA Employment Law


New legislation which applies nationally throughout Australia that covers some executive unfair dismissal claims is contained in the Fair Work Act 2009 (FWA) which came fully into force in 2010. The one problem with this legislation for most executives in Adelaide & South Australia is that only those employees earning less than an amount which is periodically fixed by the statute are covered, unless a modern award or enterprise bargaining agreement applies in their particular case. This wages cap will therefore omit most executives from protection under the FWA, except those in very junior positions. Employees who are not covered for executive unfair dismissal under the FWA will therefore need to revert to either to their common law rights or take action for breach of contract based on their individual employment agreement. There are time limits in South Australia relating to these matters and advice should be sought without delay from a SA executive unfair dismissal solicitor.

Fair Work Act 2009

Executives in South Australia who do qualify under the Fair Work Act 2009 can expect a decision which either orders re-instatement which is often not a feasible alternative in the case of a senior employee or an award of compensation. In deciding the amount of financial recompense there may be different considerations for executives compared to ordinary employees. When assessing damages, interpretation of the FWA indicates that matters relating to the employees position with the company, seniority and responsibilities can be taken into account which may disadvantage an executive who may have made at least some of the decisions that resulted in termination of employment.

Qualification Criteria

To qualify for either reinstatement or an award of damages for executive unfair dismissal under the Fair Work Act 2009 it is necessary to satisfy the basic criteria :-

  • dismissal and not redundancy
  • 6 months minimum employment (exceeding 15 employees)
  • 12 months minimum employment (below 15 employees)
  • requirement for harsh unjust or unreasonable termination
  • Small Business Fair Dismissal Code compliance required
  • wages less than the current salary cap
  • existence of modern award/enterprise bargaining agreement

Employment Lawyers

Our executive unfair dismissal solicitors in Adelaide deal with applications under the Fair Work Act 2009 and give advice on common law rights, contractual terms and unlawful dismissal which relates to failure to comply with the Workplace Relations Act 1996 including decisions based on trade union membership, family responsibilities, pregnancy, marital status, temporary absence from work due to illness and for discriminatory reasons such as gender, age and race or nationality. If you would like free advice just complete the contact form, or email our offices or use the helpline. Our Adelaide employment solicitors offer free initial advice without further obligation.