UNFAIR DISMISSAL  

Employers and employees must be aware of the statutory unfair dismissal laws under the Fair Work Act that apply across ALL States in Australia

Statutory unfair dismissal laws apply to large corporations AND small business.

It is available when: –

• There are at least 15 employees at the place of business,
• The employee has worked there either full-time or part-time for at least 6 months or
• If it is a small business employing under 15 people and the employee worked there at least 12 months either in a full-time or part-time capacity and
• The employee was under an award (even if they get paid more than the award) or
• enterprise agreement or
• was earning under the income threshold (currently at $153,600 as of 1^st July 2020).

Dismissed means: 

A termination on an employer’s own initiative or the employee was forced to resign because of the conduct by the employer. 

 Unfairly dismissed means:

The dismissal was harsh, unjust, or unreasonable and the dismissal was not a case of genuine redundancy.

 

Harsh, unjust, or unreasonable factors

The Fair Work Act considers various factors to determine whether an employee’s dismissal was harsh, unjust, or unreasonable such as but not limited to: –  

• whether this is a valid reason for the dismissal
• the conduct of the employees
• the capacity of the employees
• the safety of other employees
• the opportunity afforded to the employee to explain
• any unreasonable refusal to allow an employee a support person to assist at discussions relating to dismissal
• Unsatisfactory performance by the employee
• The size of the business or enterprise
• The conduct of the employer

A successful claim against unfair dismissal can avail

• reinstatement and reappointment to the same position or other terms no less favorable to the employee or
• compensation for lost wages but will not cover shock, distress or humiliation.

Case studies

An employee was dismissed after 17 years of employment after testing positive to marijuana following an accident when he oversaw a ferry. The court held that the dismissal was for a valid reason, well sounded and defensible under the Fair Work Act.   

However, in another instance an employee was not given the opportunity to explain why he failed to change a switch in a motor home that was been sold. This failure to be afforded the opportunity to explain was deemed unfair dismissal since the employee was not given the opportunity to explain that he had intended to complete the task later.  

If you or someone you know has been dismissed unfairly, or you are an employer and need legal advice before you dismiss an employee contact Rep-Revive Employment Lawyers® for an initial consultation.