Unfair Dismissal in the Workplace

It is fair to say that a large percentage of the Australian population relies on their employment as a means of livelihood. Assuming you are a part of the majority, a situation whereby you lose your job could significantly impact you and your family’s financial future. It is imperative to understand your rights as an employee if you are dismissed, especially if you believe the reasoning to be unfair. 

What is Unfair Dismissal?

If you are employed as a full-time or part-time permanent (or long-term casual employee), your employer can only terminate your employment in a way that is not justifiably harsh, unjust or unreasonable. It is only with a “valid reason” that an employer can base a dismissal. This can include;

• Your capacity to work;
• Your performance at work; or
• The employers change of circumstances not requiring your position anymore (redundancy) 

Fair warning is needed to dismiss an employee based on performance or capacity and a reasonable opportunity to correct your behaviour if the grounds are based on conduct. 

Failure on the employers part to issue a warning or opportunity to correct a behaviour could potentially mean that the dismissal would be covered under unfair dismissal laws. 

What section of the law covers Unfair Dismissal?

Section 387 of the Fair Work Act 2009 (Cth) indicates criteria to consider when determining if a dismissal is harsh, unjust or unreasonable. Criteria examples include: 

• Was the employee notified of the reason for dismissal?
• Was the employee given an opportunity to respond to any reason related to the dismissal?
• Was there a dedicated HR person employed by the business?
• Was the employee allowed a support person when the dismissal took place? 

The answers to the criteria in Section 387 will determine the feasibility of a successful application for unfair dismissal with the Fair Work Commission. 

In that case, can all dismissals be regarded as unfair?

If there has been a genuine shift in the business operations and your position is no longer required due to redundancy, then unfair dismissal will not typically apply. 

Is there a situation where unfair dismissal cannot be claimed?

Those who are not covered by unfair dismissal laws are:

• Independent contractors
• Employees that resign
• Labour hire workers who are terminated from the company hiring them (but not from their employer);
• Vocational placement 

How do I raise a claim, and what happens after the application?

If your termination falls under the criteria of unfair dismissal, you must file submission through Fair Work Commission within 21 days of your dismissal taking effect, unless exceptional reasons exist to explain why this was not possible. Failure to adhere to deadlines and filling out accurate dates times and reason for dismissal could jeopardise your ability to seek a positive outcome. Assuming the application is submitted correctly the Fair Work Commission will then allocate a date for a conciliation conference which allows the employee and former employer to attempt to resolve issues through negotiation, with an independent third party present in the discussion. 

Failure to resolve will prompt the Fair Work Commission to hold what is known as a jurisdiction and arbitration conference and any decision made from this point is legally binding.

For further information or advice, get in touch with Cairns Employment Lawyers. 

Cairns Employment Lawyers is a division of Preston Law, Cairns’ largest law firms.