HAVE YOU BEEN SACKED?

Unfair dismissal claims can only be made by employees who have been dismissed by their employer.

Dismissal claims includes and may also be available for:

• Employees who have been made redundant; and
• Employees who have been forced to resign.

Employees who have been made redundant are able to access the redundancy provisions of their award, certified agreement or contract of employment. If an employee is not covered by an award or certified agreement and their contract is silent then apart from notice under the Act, or reasonable notice at common law, there is no entitlement to payment.

A redundant employee may however pursue unfair dismissal if:

• the redundancy is a sham and has been created to terminate the employee; or
• if in the view of the employee they are not the worker who should be made redundant and have had no input into the process of selection.

The law in relation to redundant workers seeking reinstatement is complex and difficult.

We recommend that if you fall into this group that you get some advice from your union or a lawyer.

It is not uncommon for there to be a dispute about whether the employee may be said to have been dismissed or resigned. If your employer puts you in a position where you had no option but to resign, you may have a case. In this situation you may be able to argue what is called a "constructive dismissal" case.

If you resigned from your employment without being forced to it is unlikely you will have a case. This is because the Industrial Commission has no power to hear a case where an employer can show that an employee resigned freely.

The law on constructive dismissal cases is complex. We recommend if you fall into this group that you get some advice from your union or a lawyer. 

THE QUEENSLAND INDUSTRIAL RELATIONS COMMISSION (QIRC)

The QIRC is a Queensland based industrial tribunal with a wealth of experience in dealing with reinstatement applications.

If you are not covered by the Australian Industrial Relations Commission then under the Queensland Law you can apply to the Queensland Industrial Relations Commission which is the tribunal which hears claims for Unfair Dismissals.

You can apply for relief from the Australian Industrial Relations Commission in relation to termination of your employment on the grounds that your termination was unlawful only if before the date of your termination you were a:

• Commonwealth public sector employee; or
• a Territory employee; or
• an employee who was employed by a constitutional corporation; or
• an employee who was 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, between a State and a Territory, or between two Territories. (Section 170CC (4) Workplace Relations Act 1996 Cth).

WERE YOU AN EMPLOYEE? 

To be entitled to make an unfair dismissal claim, you must be able to 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.

Under Queensland Law an employee is one or more of the following:

• a person employed in a calling on wages or piecework rates;
• a person whose usual occupation is that of an employee in a calling;
• a person employed in a calling and working under a contract for labour only or substantially for labour only;
• a person employed in a calling and is a lessee of tools or other implements of production, or a lessee of a vehicle used to deliver goods;
• a person employed in a calling who owns, wholly or partly, a vehicle used to transport goods and passengers;
• each person, being 1 or 4 or more persons who are, or claim to be, partners working in association in a calling or business;
• an outworker engaged, for someone else's calling or business, in or about a private residence or other premises that are not necessarily business or commercial premises to pack, process, or work on articles of material or carry out clerical work;
• an apprentice engaged as an apprentice employed or used in an approved training scheme under the Vocational Education Training and Employment Act 1991, s68(2)(b), even if the application for the person's registration as an apprentice has not be made.

Independent Contractors

There is also a long line of authorities that deals with the question of whether a worker is an employee or an independent contractor. The Courts have on many occasions decided that workers who were "contracted" as independent contractors were in fact employees. This is particularly relevant in the building, road transport, cleaning and hospitality industries.

If you are engaged as an independent contractor and are terminated, then depending on the true nature of the relationship between you and the person you were working for you may still be able to access unfair dismissal laws.

Some of the issues that will be looked at to determine if you are an employee are:

• what control is exercised over you;
• how you are paid i.e. by invoice or by regular payments;
• whether you are insured under WorkCover;
• whether you have access to paid sick leave;
• whether you have access to paid annual leave;
• there is a person in a supervising position who disciplines you;
• whether you provide your own plant and equipment;
• whether you provide your own materials;
• whether you have to find a replacement during periods of absence;
• how you pay tax.

ARE YOU EXCLUDED FROM ACCESSING UNFAIR DISMISSAL LAW FOR DISMISSALS OTHER THAN DISMISSAL FOR INVALID REASONS?

The Queensland Law regarding unfair dismissal also excludes some classes of employees from making an unfair dismissal application for reasons other than invalid reasons.

You are excluded from making an application to the Commission for an Unfair Dismissal on the grounds of harsh, unjust or unreasonable if you are a:

Probationary Employee

• an employee during the first 3 months of employment with an employer ("the probationary period"), if the dismissal is for a reason other than an invalid reason and you have not got a written agreement from your employer to serve a shorter probationary period or no probationary period;
• an employee serves a longer probation period, that is a probation period longer than 3 months, and your dismissal is for a reason other than an invalid reason.

Remember if you are an employee serving a "longer probationary" period, the period decided upon by written agreement between yourself and your employee before your employment commenced, is to be a reasonable period having regard to the nature and circumstances of employment.

Short Term Casual Employee

A short term casual employee is a casual employee, other than a casual employee who is engaged by a particular employer on a regular and systematic basis for several periods of employment during a period of at least 1 year, and apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.

Employed for a specified period contract

An employee engaged for a specific period or task, unless the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligation under the unfair dismissal law.

If you earn over $68,000 per annum

You are excluded from making an application to the Commission for an unfair dismissal on the grounds that the dismissal was harsh, unjust or unreasonable if you are:

• an employee who is not employed under an industrial instrument (i.e. an award or certified agreement) and you are not a public service officer employed on tenure under the Public Service Act 1996 and your annual wages immediately before the dismissal are more than $68,000.00 or a greater amount stated or worked out in a way under a regulation.

For the purposes of this regulation in calculating whether your wages are more than $68,000.00 the amount of allowances, superannuation and other "salary" type benefits must be included.

REMEMBER the exclusions are for dismissals other than for an invalid reason or reasons. If you were dismissed for an invalid reason and fall into one or more of the above categories you may still have an unfair dismissal claim against your employer. If you are at all unsure we recommend you contact your union or a lawyer.

If you are not excluded, you can apply to the Queensland Industrial Relations Commission which is the tribunal which hears claims from Unfair Dismissals. 

WHAT IS AN UNFAIR DISMISSAL?

Determining whether your dismissal was harsh, unjust or unreasonable is not easy. It will depend on the facts of your case.

In an unfair dismissal case, you have to show that you have been harshly, unjustly or unreasonably dismissed from you employment, or you have been dismissed for an invalid reason.

An invalid reason is one or more of the following:

1. temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury for which compensation is payable under WorkCover);
2. seeking office as, or acting or having acted in the capacity of, an employees’ representative;
3. membership of an employee organisation or participation in the organisation’s activities outside working hours or, with the employer’s consent, during working hours;
4. non membership of an employee organisation;
5. filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities;
6. the making by anyone, or a belief that anyone has made or may make

• a public interest disclosure under the Whistleblowers Protection Act 1994; or
• a complaint under the Health Rights Commission Act 1991;

7. refusing to negotiate for, make, sign, extend, amend or terminate a certified agreement or QWA;
8. refusing to negotiate for or make a certified agreement, or Australian workplace agreement, under the Commonwealth Act;
9. a reason mentioned in section 34 of the Industrial Relations Act (dismissal because of pregnancy or parental leave);
10. a reason mentioned in section 394(2) of the Industrial Relations Act (dismissal because the employee's wages are/are not spent in a particular way);
11. discrimination.

A dismissal, not for an invalid reason may be harsh, unjust or unreasonable. 

DO YOU HAVE A CASE FOR REINSTATEMENT AS YOUR TERMINATION WAS HARSH, UNJUST OR UNREASONABLE? 

There can be no guarantees as to the success or failure in an individual case.

The Commission will make its assessment by weighing up all the facts that are presented to it.

The Commission must take the follow things into account when assessing your application:

• whether you were notified of the reason for your dismissal;
• whether your dismissal related to the operational requirements of your employer's undertaking, establishment or service;
• whether your dismissal related to your conduct, capacity or performance;
• whether you were warned about your conduct, capacity or performance;
• whether you were given an opportunity to respond to the allegation about your conduct, capacity or performance.

The Commission must also consider any other matter the Commission considers relevant.

You need to be very careful when looking at decisions on particular facts or on other legislation or in other commissions or courts.

But it may help to provide you with a few examples of dismissals that are likely to be harsh, unjust or unreasonable. 

GROSS MISCONDUCT

An exception where the circumstances relating to a termination can be looked at in isolation is where the termination has occurred for reasons of gross misconduct. This is also referred to as "instant dismissal".

In termination for gross misconduct no notice is paid.

To be dismissed for gross misconduct requires a serious shortfall in conduct. Usually it is for such things as dishonesty (i.e. stealing), fighting, lying, excessive rudeness to customers etc.

If you are dismissed for gross misconduct then it is important that you obtain advice as soon as possible and that you make full and complete notes of the events relating to and surrounding the conduct giving rise to the termination.

In these sort of cases it is not unusual for an employer, in the heat of the moment, to not properly investigate an employee's story or to wrongly prefer the version of one worker over another.

In situations of dishonesty it is also not unusual for the Police to be involved. This does not mean that an application for dismissal is not warranted, however such applications have to be handled with a great deal of care and you should consult your union or a lawyer.

FURTHER INFORMATION

This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover, motor vehicle accident, personal injuries), anti-discrimination & harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.