Unfair dismissal laws only cover employees who are covered by the national workplace relations systems. Other employees may have access to remedies under State legislation.
An employee has been unfairly dismissed if Fair Work Australia (FWA) finds that:
• they were dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy.
It’s not an unfair dismissal if the employer is a small business employer and they follow the Small Business Fair Dismissal Code when dismissing an employee. A small business employer is defined as someone who employs fewer than 15 employees. Please note from 1 January 2011, this method of calculation will change and will be based on a headcount of each employee, irrespective of hours worked. The headcount includes casuals employed on a regular and systematic basis, employees of associated entities, and the employee/s being dismissed.
When is a dismissal unfair?
When FWA considers whether a dismissal is harsh, unjust or unreasonable, they take into account a range of factors including:
• if there’s a valid reason for the dismissal relating to the employee’s conduct or capacity
• if the employee is notified of the reason and given an opportunity to respond
• any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to dismissal
• if the dismissal relates to unsatisfactory performance, whether the employee is warned about this unsatisfactory performance before the dismissal
• the impact of the size of the employer’s enterprise on the dismissal process, including the absence of dedicated human resource management specialists or expertise
• any other factors FWA considers relevant.
Who is covered by the unfair dismissal laws?
• all employees in Victoria, the Northern Territory or the Australian Capital Territory
• those employed by private enterprise in New South Wales, Queensland, South Australia or Tasmania
• those employed by local government in Tasmania
• those employed by a constitutional corporation in Western Australia (including Pty Ltd companies)—this may include some local governments
• those employed by the Commonwealth or a Commonwealth authority
• a waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce.
Who is not covered by the unfair dismissal laws?
The laws do not cover:
• those employed by State government in New South Wales, Queensland, Western Australia, South Australia and Tasmania
• those employed by local government in New South Wales, Queensland and South Australia
• those employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or Trust)
• 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 had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.
What should I do?
If you believe you’ve been unfairly dismissed, you should seek professional advice immediately.
You must apply to FWA within 14 days after a dismissal takes effect, although FWA may accept late applications in limited circumstances. Employees are required to pay an application fee. This fee may be waived on the grounds that its payment would cause serious hardship.
If you have concerns regarding Unfair Dismissal Laws or seek professional advice, here at The Quinn Group our team of dedicated lawyers are able to assist you. Please call us on 1300 QUINNS (1300 784 667) or +61 2 9223 9166 or complete and submit an online enquiry.
