Div 4Determination of application

Division 4—Determination of application 108—Question to be determined at the hearing (1) At the hearing of an application under this Part, SAET must determine whether, on the balance of probabilities, the dismissal is harsh, unjust or unreasonable. (2) In deciding whether a dismissal was harsh, unjust or unreasonable, SAET must have regard to— (a) the Termination of Employment Convention; and (b) the rules and procedures for termination of employment prescribed by or under Schedule 8; and (c) the degree to which the size of the relevant undertaking, establishment or business impacted on the procedures followed in effecting the dismissal; and (d) the degree to which the absence of dedicated human resource management specialists or expertise in the relevant undertaking, establishment or business impacted on the procedures followed in effecting the dismissal; and (e) whether the employer has failed to comply with an obligation under section 18 or 20 of the Return to Work Act 2014; and (f) any other factor considered by SAET to be relevant to the particular circumstances of the dismissal. (3) If a redundancy payment is made on the dismissal in accordance with a relevant industrial instrument, the dismissal cannot be regarded as harsh, unjust or unreasonable solely on the ground that the payment is inadequate. 109—Remedies for unfair dismissal from employment (1) If SAET is satisfied on application under this Part that an employee's dismissal is harsh, unjust or unreasonable, SAET may— (a) order that the applicant be re-employed in the applicant's former position without prejudice to the former conditions of employment; or (b) if it would be impracticable for the employer to re-employ the applicant in the applicant's former position, or re-employment in the applicant's former position would not, for some other reason, be an appropriate remedy—order that the applicant be re-employed by the employer in some other position (if such a position is available) on conditions determined by SAET; or (c) if SAET considers that re-employment by the employer in any position would not be an appropriate remedy—order the employer to pay to the applicant an amount of compensation determined by SAET. (1a) Re-employment is to be regarded as the preferred remedy, and SAET may only award an alternative remedy if satisfied that there are cogent reasons to believe that re-employment would not, in the circumstances of the particular case, be an appropriate remedy. (1b) However, SAET need not regard re-employment as the preferred remedy if the position to which the applicant would be re‑employed is in a business or undertaking where, at the time of SAET's decision on the application, less than 50 employees are employed. (2) If SAET makes an order for re-employment under this section, then, subject to any contrary direction of SAET— (a) the employee must be remunerated for the period intervening between the date that the dismissal took effect and the date of re-employment as if the employee's employment in the position from which the employee was dismissed had not been terminated; and (b) the employer is entitled to the repayment of any amount paid to the employee on dismissal on account of or arising from the dismissal; and (c) for the purposes of determining rights to annual leave, sick leave, long service leave, and parental leave, the interruption to the employee's continuity of service caused by the dismissal will be disregarded. (3) SAET must not order compensation exceeding 6 months' remuneration at the rate applicable to the dismissed employee immediately before the dismissal took effect, or $33 100 (indexed), whichever is the greater. (4) An order for the payment of a monetary amount under this section may provide for payment by instalments if— (a) SAET is satisfied that exceptional circumstances exist justifying the making of the order; and (b) insofar as the order compensates loss of remuneration—the instalments of compensation are at least as favourable to the employee as the payments of remuneration (to which the order relates) would have been if the employment had continued.