What Constitutes Unfair Dismissal?

posted Nov 1, 2010 6:59 PM by Lisa Russell [ updated Nov 2, 2010 4:09 PM ]

In accordance with the Fair Work Act, 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 (up to 1 January 2011 this means 15 full-time equivalent employees) However, 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 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.

Applying for unfair dismissal
Employees wishing to apply for unfair dismissal, must be:

covered by the national workplace system
eligible to apply.

To be eligible to apply, the employee must:

have completed a minimum employment period of at least 6 months (or 12 months if the employer is a small business employer who employs fewer than 15 employees)

at the time of dismissal, be in one of the following categories:

covered by a modern award or a pre-modern award instrument, such as a federal award, a state reference transitional award or a notional agreement preserving state award (NAPSA)
covered by an enterprise agreement or an agreement-based transitional instrument, or
be earning less than $113 800 a year.

If employees believe they have been unfairly dismissed, they can apply to Fair Work Australia (FWA) for a remedy. This must be done 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.

What happens next
Fair Work Australia (FWA) will check the application to see if it’s complete. FWA will notify the employer.

Usually, a conciliation is then arranged, to help both sides to resolve the matter by agreement.

If a resolution can’t be reached, a conference or hearing will be held.If FWA finds that the dismissal was unfair, the employer can be ordered to either:

reinstate the employee (give back their job), or
compensate the employee for up to 26 weeks pay (up to a maximum amount of $56,900).

Source: www.fairwork.gov.au

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