The Fair Work Act 2009 is the overarching Act governing employee/employer relations in Australia. The Act provides a number of minimum entitlements and general protections for employees, including provisions relating to workplace discrimination, adverse actions, and unfair dismissal.
Protection against unfair dismissal is one of the keystone provisions of the Act. Under section 385, a person has been unfairly dismissed if the Fair Work Commission is satisfied that:
- the person has been dismissed; and
- the dismissal was harsh, unjust or unreasonable; and
- the dismissal was not consistent with the Small Business Fair Dismissal Code; and
- the dismissal was not a case of genuine redundancy.
Who can claim?
Only “national system employees” are entitled to make applications to the Fair Work Commission for unfair dismissal. The prerequisites for this are as follows:
- they have to be an employee for a national system employer (including all ACT, Commonwealth, and NSW non-State employers); and
- have completed the minimum period of employment (6 months for employers who employ fewer than 15 employees; 12 months for other employers);
- earn less than $138,900.00 (as at 20 June 2017); or
- work under a modern award; or
- work under an enterprise agreement.
Employees who don’t meet the criteria cannot claim unfair dismissal, although there may be other areas of the Act that apply.
What is dismissal?
The term “dismissed” applies to two situations under the Act. Firstly, in an employer terminates the person’s employment; and secondly, if a person was forced to resign because of the conduct of the course of conduct engaged by the employer. It doesn’t include situations of demotion or contractors whose employment ceases at the end of their contracted period.
Dismissal usually takes effect at the time the person’s employment actually ceases, meaning that if they are given notice and they work through the notice period the dismissal will take place when they finish working.
What makes it unfair?
In determining if the dismiss was unfair the Fair Work Commission considers whether the dismissal was harsh, unjust or unreasonable. The definition is very broad and can include the following:
- unjust because the employee was not guilty of the alleged misconduct;
- unreasonable because the evidence or material before the employer did not support the conclusion;
- harsh on the employee due to the economic and personal consequences resulting from being dismissed; or
- harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).
In making their decision the Commission must take the following into account:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
- whether the person was notified of that reason;
- whether the person was given an opportunity to respond;
- any unreasonable refusal by the employer to allow a support person to be present at any discussions relating to dismissal;
- if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
- the size of the employer in relation to the procedures followed in effecting the dismissal;
- the absence of dedicated HR specialists or expertise in the employer in relation to the procedures followed in the dismissal; and
- any other matters that the Commission considers relevant.
What if I am in a Small Business?
Small businesses can dismiss employees if they adhere to the Small Business Fair Dismissal Code which can be found on the Fair Work Commission’s . It provides for situations where it is necessary to immediately dismiss an employee in cases of serious misconduct, and also for situations where it is appropriate to give written warnings regarding the employee’s conduct or capacity to do their job.
If a small business dismisses an employee they must be able to show evidence that they complied with the complied with the Code, so it is important that employers fill out the Small Business Fair Dismissal Code Checklist which can be found at www.fwc.gov.au.
What if they’re redundant?
If an employee is dismissed in the case of a genuine redundancy they cannot bring a claim for unfair dismissal. It is important to consider whether the employee could be redeployed rather that made redundant to ensure that the legislative requirements under the Fair Work Act are met.
Remedies for unfair dismissal
If you believe you have been unfairly dismissed it is crucial that you seek legal advice as soon as possible. An application to the Fair Work Commission must be made within 21 of dismissal, otherwise you may be barred from commencing proceedings.
The Commission has the power to reinstate employees or order payment of compensation if reinstatement is inappropriate in the circumstances.
If you need any advice on your workplace rights as either an employer or an employee please contact us on 02 6280 8899 or email email@example.com