Unfair Dismissal

08/04/2019

The Fair Work Act protects certain employees from unfair dismissal. Contrary to urban myth, the protection against unfair dismissal does not apply to all employees in Australia covered by the Fair Work Act. It is important that you check whether you qualify prior to filing any application contesting your dismissal.

What is an unfair dismissal?

The Fair Work Commission has the power to decide if someone has been unfairly dismissed. To do so, it needs to be satisfied of the following:

  1. The person has been dismissed from the employment; and
  1. The dismissal was harsh, unjust or unreasonable; and
  1. The dismissal was not consistent with the Small Business Fair Dismissal Code; and
  1. The dismissal was not a case of genuine redundancy.

We discuss each of the elements below.

Dismissal?

A person has been dismissed from employment if:

  1. The persons employment has been terminated on the employers initiative; or
  1. The person resigned from their employment but was forced to do so because of conduct or a course of conduct engaged in by their employer.

Harsh, Unjust, Unreasonable?

The Fair Work Commission considers set criteria in answering this question:  

  1. Whether there was a valid reason for the dismissal related to the employees capacity or conduct; and
  1. Whether the person was notified of the reason for dismissal; and
  1. Whether the person was given an opportunity to respond related to any reason related to the capacity or conduct of the person; and
  1. Any unreasonable refusal by the employer to allow a support person to be present to assist in any discussions relating to the dismissal; and
  1. If the dismissal related to unsatisfactory performance, whether the person was warned about that performance prior to the dismissal; and
  1. The degree to which the size of the employers enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  1. The degree to which the absence of dedicated human resource management specialists or expertise would likely have impacted on the procedures followed in effecting the dismissal; and
  1. Any other matters that FWC considers relevant.

The role of the Fair Work Commission is to weigh up all of the factors in totality and no factor alone will be determinative.

Small Business?

A small business employer is defined as an employer with less than 15 employees. Because of complex company and corporate structures, counting the 15 can be a complex task and it is always important to check.

A dismissal cannot be unfair if the dismissal was in compliance with the Small Business Fair Dismissal Code. The Code is a document published which sets out how a small business employer should effect an unfair dismissal claim. If the small business employer has complied with the Code then that is the end of the unfair dismissal claim.

Genuine Redundancy?

A genuine redundancy can defeat an unfair dismissal claim. A genuine redundancy is defined as:

  1. The employer no longer requires the job to be performed by anyone or because of the changes in the operational requirements of the employers enterprise; and
  1. The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

Importantly, if the employee could have been redeployed, then the dismissal will not be a genuine redundancy. 

Who is protected?

An employee is protected from unfair dismissal is they are able to satisfy the following criteria:

  1. The person is an employee;
  1. The person has completed a minimum period of employment with their employer (the minimum period is 6 months or if you are employed by a small business employer – one year); and
  1. A modern award covers the employee; OR
  1. An enterprise agreement applies to the employee in relation to the employee; OR
  1. The employee income and other relevant earnings do not exceed the high income threshold (set at $145,400 as at April 2019. This amount is indexed each year on 1 July).

How to bring a claim?

An employee who wishes to allege that they were the subject of an unfair dismissal must file a claim with the Fair Work Commission within 21 days of the dismissal. This is a strict time limit and can only be extended by the Fair Work Commission in exceptional circumstances.

What can the Commission do?

If you are able to demonstrate that you were the subject of an unfair dismissal the Fair Work Commission has the option to:

  1. Reinstate to your former employment (including making an order for continuity of employment and the payment of compensation for lost wages); or
  1. Appoint you to another position on terms and conditions no less favourable than those you were on at the time of the dismissal (including making an order for continuity of employment and the payment of compensation for lost wages); or
  1. Make an order for compensation which is capped at either 26 weeks of your remuneration applicable prior to the dismissal or half of the high income threshold (the threshold is $154,400) whichever is the lesser.

How can Gordon Legal help?

Gordon Legal are experts in the field whose sole focus is assisting employees in times of difficulty in the workplace. We specialise in winning these types of claims and defending fairness in the workplace. Contact our friendly team on 1800 21 22 23 to discussion your claim. Make sure you don’t delay because of the strict deadlines.