UNFAIR DISMISSAL

Have you been unfairly dismissed?

Introduction

The purpose of unfair dismissal laws pursuant to the Fair Work Act (“The Act”) is to uphold procedural fairness when dismissing an employee by providing a regime, which establishes criteria for fair process and the remedies available for an absence of procedural fairness.

The Act provides for a uniform legislative framework to provide for rights and remedies with respect to employment relationships between employees and employers throughout Australia.

Section 387 of The Act stipulates the relevant considerations that Fair Work Australia (FWA) must take into account when determining whether a dismissal was harsh, unjust or unreasonable. The considerations include:

a) whether there was a valid reason for the dismissal related to the person's capacity or conduct;

b) whether the person was notified of that reason;

c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

d) any unreasonable refusal by the employer to refuse a support person to assist at any discussions relating to dismissal.

Prerequisites

The following criteria must be satisfied before a conclusion can be reached that there might be a claim for unfair dismissal:

a) In the event that the employer employs less than 15 people, you must have completed a minimum period of employment of 12 months.

b) In the event that the employer employs more than 15 people, you must have completed a minimum period of employment of 6 months.

c) Your salary is under the high income threshold (indexed at July each year), which is currently set at $118,100 per annum.

d) You must be dismissed at the employer’s initiative, that is, your services are terminated by the employer without your consent.

e) You must be an “employee” and not an independent contractor.

Usual Reasons for Dismissal

a) Performance

i. Have you been warned about issues in relation to performance and given the opportunity to rectify the problem?

ii. Has your employer notified you that failure to improve will result in possible termination?

b) Redundancy

i. In order to be a ‘genuine redundancy’, your employer must comply with an obligation to consult about the redundancy arising from an applicable Modern Award or Enterprise Agreement.

ii. A dismissal will not be a genuine redundancy if it would have been reasonable in all the circumstances for you to be redeployed in either the same enterprise or in an associated enterprise.

iii. There are significant obligations at required which the employer must comply with procedurally and many unfortunately fail to comply.

c) Constructive Dismissal

i. The Act provides for an Applicant to bring a claim for unfair dismissal where an employee resigns, but was forced to do so because of conduct or a course of conduct engaged in by the employer.

ii. In establishing whether you have been constructively dismissed, it is necessary to consider whether you have been demoted, whether your remuneration has been decreased and/or whether your status and responsibilities have been diminished.

Application Process and Available Remedies

Applications for an unfair dismissal remedy must be submitted within 14 days of the dismissal. Telephone conciliation between the employer, employee and representative lawyers will be arranged between the parties to attempt to reach a fast and amicable solution. Where conciliation is ineffective, the matter can proceed to Arbitration whereby FWA determines whether the dismissal is unfair. Remedies can include that an employee be reinstated to their position if it is reasonable to do so or awarded compensation in accordance with the legislative guidelines. In almost all cases, the appropriate remedy is financial compensation.

TAKE ACTION NOW: YOU ONLY HAVE 14 DAYS FROM THE DATE OF DISMISSAL