Workplace and Employment law > Employees > Workplace Disputes & Claims

Employment Law -
Employees-
Workplace Disputes & Claims

Unfair Dismissal
Unfair dismissal occurs when the termination of an employee was “harsh, unjust or unreasonable. Termination can be harsh, unjust of unreasonable" if;
  • there is no valid reason for the dismissal; and
  • the person was not notified of the reason for the dismissal; and
  • the person was not given an opportunity to respond to any reason for the dismissal; and
  • there is an unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
  • the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
  • the employer’s enterprise did not follow procedures in effecting the dismissal; and
  • the redundancy is not genuine.

Currently, Fair Work Australia (FWA) deals with most unfair dismissal claims. Fair Work Australia does not deal with unfair dismissal for persons employed by the NSW State Government, or a related body. The NSW Industrial Relations Commission operates in a similar manner to Fair Work Australia for employees covered by state employment laws.

Who can make an unfair dismissal application? To make an unfair dismissal application an employee must be:

  • covered by the national workplace relations system; and
  • eligible to apply.
To be eligible to apply an employee must, amongst other things, have:
  • completed a minimum employment period of at least six months (one year in the case of a small business employee);
  • earn under the income threshold;
  • be covered by an award or agreement if they earn more than the high income threshold a year; and
  • Filed your application within 14 days of the dismissal taking effect.
Who is not covered by the unfair dismissal laws?
The laws do not cover:
  • genuine contractors
  • employees who resign and were not forced to do so by the conduct of their employer
  • those employed under a contract for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season
  • trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement
  • employees who have been demoted but have no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.

Compensation or Reinstatement
FWA has power to award compensation or reinstatement for an unfair dismissal of employees who are employed under an award or who earn less than the high income threshold per annum. This amount is increased at the beginning of each financial year in accordance with increases in the consumer price index for that period.

FWA prefers to reinstate employees to their former position, however, it may otherwise award compensation for up to 26 weeks pay if reinstatement is not considered “practicable”. If an employee is reinstated they may receive “back pay” for the period of unemployment from dismissal to reinstatement.

Need Further Help?
If you need further advice or assistance please contact us so that we can provide you with advice tailored to your personal situation.

Unlawful Termination
It is unlawful to terminate someone for a ‘prohibited reason’, which include:

  1. Temporary absence from work because of illness or injury;
  2. Trade union membership or participation in trade union activities;
  3. Non membership of a trade union;
  4. The filing of a complaint, or the participation in proceedings, against an employer;
  5. Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  6. Refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
  7. Absence from work during maternity leave or other parental leave;

The unlawful termination laws apply to all employees regardless of their size and the employee’s length of service. You have 60 days from the date of termination to make an application.

Conciliation at Fair Work Australia (FWA)
FWA deals with unlawful termination claims at first instance.

FWA has power to conciliate matters that come before it where unlawful termination is alleged. FWA's conciliation process usually involves a member of the Tribunal hearing from each party, speaking to the parties individually and assisting the parties in reaching an amicable settlement of the matter.

Conciliation is merely the 'first step' in bringing an unlawful termination claim. If conciliation is not successful in achieving a settlement of the matter, the Tribunal will issue a Certificate to the effect that all avenues in relation to a settlement of the matter have been exhausted.

From there, if the matter is not settled you have a period of 14 days in which to reach a decision as to whether you will continue to pursue the matter. If the matter is pursued it will proceed as formal legal proceedings in the Federal Magistrates Court of Australia.

Whilst there are many outcomes that the parties may agree to at the conciliation stage (or that the Court may Order at a Hearing should the matter proceed to that stage) of the matter, the most common are re-instatement and/or monetary compensation.

Need Further Help?
If you need further advice or assistance please contact us so that we can provide you with advice tailored to your personal situation.