HAVE YOU BEEN SACKED?
Unfair dismissal claims can only be made where there has been a termination
at the initiative of the employer.
Therefore, unfair dismissal claims will be available where:
- Employees have been sacked or their positions made redundant;
- Employees have been forced to resign (constructive dismissal); or
- Where the conduct of an employer amounts to a repudiation of the contract
of employment, an employee may accept the repudiation by tendering his or
her notice of resignation. An employee will be entitled to maintain an
action for unfair dismissal notwithstanding the resignation if the conduct
of the employer was such as to evidence an intention no longer to be bound
by an essential term or terms of the contact of employment (the doctrine of
repudiation).
In general, if you resigned from your employment it is unlikely you will have
a case. This is because the Commission has no power to hear a case where an
employer can show that an employee resigned freely.
WHAT IS AN UNFAIR DISMISSAL?
The unfair dismissal system in The ACT is regulated by the Workplace
Relations Act 1996 (Cth) (“the Act”).
In order to have a viable unfair dismissal case, you either have to show that
your dismissal was harsh, unjust or unreasonable in all of the circumstances, or
that the termination of your employment was unlawful in that you were dismissed
for reason of or for reasons including a prohibited reason.
It is also unlawful where an employer fails to comply with the statutory
notice provisions, either by failing to give an employee the prescribed period
of notice on termination, or by failing to make payment in lieu of notice, other
than in cases of summary dismissal.
Determining whether your dismissal was harsh unjust or unreasonable is not
easy. It will depend on the facts of your case.
In determining whether your dismissal was harsh unjust or unreasonable, the
Commission will make an assessment of the facts of your case and determine
whether or not you have been given a “fair go all round”.
WERE YOU AN EMPLOYEE?
To be entitled to make an unfair dismissal claim, you must be able show that
you were an employee. Sounds simple, but if you cannot show that you were an
employee before you were sacked, you will not be able to make an unfair
dismissal claim.
Independent Contractors
This issue is important if you have been working as an independent contractor
or subcontractor. Independent contractors and subcontractors are unable make
unfair dismissal claims. This is because legally, independent contractors and
subcontractors are not regarded as employees.
In general, you will not an employee if:
- you were working under a contract through a labour hire agency; or
- you were engaged and worked as an independent contractor or subcontractor.
A number of different factors are relevant to a person’s classification as
an employee or a contractor. Sometimes employers will call their workers
contractors, when they are really employees.
ARE YOU EXCLUDED BY THE PROVISIONS OF THE WORKPLACE RELATIONS ACT 1996?
Only certain employees have recourse to the unfair dismissal system. These
include:
- Commonwealth public sector employees;
- Territory employees;
- Federal award employees who were employed by a constitutional corporation;
or
- Federal award employees who were either a waterside worker, maritime
employee or flight crew officer, employed in the course of, or in relation
to, trade or commerce between Australia and a place outside Australia,
between the States, within a Territory, between a State and a Territory, or
between two Territories.
Because The ACT has referred certain of its powers to legislate in respect of
industrial relations to the Commonwealth, this means that all private sector
employees and most public sector employees in The ACT (subject to any separate
exclusions contained in the Workplace Relations Act and its Regulations) are
covered by the unfair dismissal system. The Workplace Relations Act applies to
ACTemployees, whereas employees in other States must fall within one of the
categories of employees listed in paragraphs (a), (c) or (d) above.
Certain types of employees, however, are excluded from making an unfair
dismissal claim.
Generally, the Act excludes the following groups of employees:
- Employees engaged for a specified period of time or for a specified task;
- Some employees serving a period of probation or qualifying period;
- Some employees engaged on a casual basis for a short period;
- Some trainees (but not apprentices);
- Employees whose terms and conditions of employment are governed by special
arrangements providing particular protection in respect of termination of
employment either generally or in particular circumstances;
- Some workers in the building, maritime and meat industry; and
- Employees who are not employed under Federal award conditions (or
certified agreements, an AWA or an old Industrial Relations Act agreement)
and whose remuneration is over the amount of $64,000.00 per annum plus
indexation - currently $69,200.00.
The regulations then provide that for the purposes of the Act, the following
kinds of employees are excluded:
- an employee engaged under a contract of employment for a specified period
of time;
- an employee engaged under a contract of employment for a specified task;
- an employee serving a period of probation or a qualifying period of
employment, if the duration of the period or the maximum duration of the
period, as the case may be, is determined in advance and, either:
(i) the period, or the maximum duration, is 3 months or less; or
(ii) the period, or the maximum duration:
- is more than 3 months; and
- is reasonable, having regard to the nature and circumstances of the
employment;
- a casual employee engaged for a short period, within the meaning of
subregulation (3);
- a trainee whose employment under a traineeship agreement or an approved
traineeship:
(i) is for a specified period; or
(ii) is, for any other reason, limited to the duration of the agreement;
- an employee:
(i) who is not employed under award conditions; and
(ii) to whom subsection 170CC (3) or (4) of the Act applies. [that is, the
employee’s remuneration exceeds the allowable threshold]
A casual employee is taken to be engaged for a short period unless:
- the employee is engaged by a particular employer on a regular and
systematic basis for a sequence of periods of employment during a period of
at least 12 months; and
- the employee has, or but for a decision by the employer to terminate the
employee’s employment, would have had, a reasonable expectation of
continuing employment by the employer.
REMUNERATION
If your employment is governed by a Federal award (or certified agreement,
AWA or old Industrial Relations Act agreement) the remuneration that you earn is
not relevant to the question of jurisdiction. If, however, there is no such
instrument regulating your conditions of employment, your remuneration is
critical in determining whether you have jurisdiction to bring an unfair
dismissal claim. Currently, where your remuneration level is greater than
$69,200.00 and your employment was not regulated by a Federal award (or
certified agreement, AWA or old Industrial Relations Act agreement), you will
not have access to the unfair dismissal system.
The Commission has held that remuneration for the purposes of this exclusion
is not limited to a worker’s base wage, but includes other benefits such as
provision of a motor vehicle, superannuation contributions and
commission/bonuses.
CASUAL EMPLOYEES
The method of casual employment will vary from industry to industry and it
will often be of assistance to look to any relevant award which governs the
industry in which you work to see how it defines casual employment. You should
note that it is not always the case that casual employment involves irregular
work, and quite often casual employees are engaged for long periods. It is also
not uncommon for casual employees to work up to 38 hours per week. Casual
employees are not entitled to paid annual leave or sick leave, but do have a
loading on their ordinary time rate of pay above that of permanent employees.
FIXED TERM CONTRACTS
A number of decisions of the Industrial Relations Court of Australia suggest
that even where a contract is for a fixed term, if this is terminated
prematurely in breach of the contract an employee is not excluded from bringing
an unfair dismissal claim. For example, should you be employed under a 1 year
contract but your employer terminates the contract after 5 months, you would
still be able to bring a claim.
Furthermore, it should be noted that a contract is only for a fixed term if
the term is truly fixed. If a contract allows either party to terminate the
contract prior to the expiration of the fixed term period, then such a contract
is not for a fixed term and does not fall within this exclusion. Thus, using the
above example, if your were employed under a 12 month contract but this allowed
for either party to terminate it on giving the other party 1 month’s notice,
this then is not a fixed term contract within the meaning of the exclusion.
The exclusion with respect to fixed term contracts and contracts for a
specified task do not apply to an employee if a substantial purpose of the
engagement under a contract of that kind is, or was at the time of the employee’s
engagement, to avoid the employer’s obligations under the unfair dismissal
system.
EMPLOYMENT FOR A SPECIFIED TASK
An example of where employment is for a specified task, is a building worker
who has been employed on a building site for the duration of the building
project. Such a contract cannot be described as fixed term since the contract to
construct the building will generally not specify the duration of the contract,
but merely specify the outer limit within which the building should be
completed. Once the building has been completed and an employee is terminated,
no action will lie against the company since the contract of employment was for
a specified task. Another example may be in the area of fruit picking, where
persons are engaged for that task for the duration of the fruit picking season.
PROBATIONARY EMPLOYEES
As regards probationary employees, the requirement that a probationary period
be determined in advance requires the period “be a specific limited period,
the duration of which is clearly spelt out”. If there is no period determined
at all, then it fails this test. The probationary period need not be recorded in
writing, but may merely be by verbal arrangement. If the probationary period is
not determined in advance of the employment relationship commencing, then the
fact that it is determined shortly thereafter does not bring the probationary
period within the terms of this regulation.
It is only where a probationary period is in excess of 3 months that the
Commission must also consider whether the period specified is reasonable, having
regard to the nature and circumstances of the employment.
WHAT CAN YOU DO?
Under the Workplace Relations Act 1996, you make an application for unfair
dismissal to:
Australian Industrial Relations Commission
Registry
Level 42 Nauru House
80 Collins Street
Melbourne 3000
ph: 9653 8200
fax: 9654 6812
DO YOU HAVE A CASE FOR HARSH, UNJUST OR UNREASONABLE DISMISSAL?
There can be no guarantees as to the success or failure of an individual
case.
In deciding if your employment was harshly, unjustly or unreasonably
terminated the Commission must have regard to:
- whether there was a valid reason for the termination and whether you were
notified of that reason;
- whether you were given an opportunity to respond to any reason relating to
your performance or conduct that lead to your termination;
- if your employment was terminated because of unsatisfactory performance,
whether you had been warned about that before your termination;
- any other matters the Commission considers relevant.
The Commission will look at ALL the circumstances of the case to see if your
employer has given you a “fair go all round”. The Commission will make its
assessment by weighing up all the facts that are presented to it, and by making
an assessment of the credibility of the witnesses.
The strength of your claim will also depend upon the evidence that you can
adduce in support of the fact that you were unfairly dismissed from your
employment.
Here is a list of things that the Commission is likely to consider which may
provide you with some guidance as to the likely success of a claim:
- what was your relationship like with other employee’s, customers and
your employer?
- what was the nature and quality of your work?
- was your work performance up to scratch?
- had you received proper training and supervision to do your job?
- were you given any warnings or reprimands?
- were you given a chance to respond to any allegations?
- were you given reasons for your dismissal?
- did your employer do proper investigations into allegations of misconduct?
- have other employees at the workplace been treated consistently in similar
circumstances?
- were you paid all your entitlements after you were dismissed?
