Know Your Rights: Unfair Dismissal (Fair Work Act)



Unfair Dismissal

Following on from our look at unfair dismissal under the Industrial Relations Act 1996, today we’ll be looking at the Fair Work Act 2009.

The substantive components of unfair dismissal are similar under both the state and federal legislation, so please refer to our last article to read more about procedural fairness and constructive dismissal.

Although most substantive components of unfair dismissal are similar under both Acts, there are a few procedural differences, which we’ve outlined below together with a refresher on what is unfair dismissal.

Unfair Dismissal

"Unfair dismissal" is when you lose your job in a way that was:

  1. harsh, unjust or unreasonable manner;
  2. inconsistent with the Small Business Fair Dismissal Code; and or
  3. not a case of genuine redundancy

In determining whether a dismissal is unfair, the following factors will be considered:

  • was there a valid reason for the dismissal?
  • was the employee informed of the reason at the time of, or prior to their dismissal?
  • where the employee was terminated for poor performance but was never warned that they were performing poorly.

It would also be illegal for you to lose your job because you: 

  • were absent from work because you were sick or injured
  • were absent from work during maternity leave or other parental leave
  • are a union member or union representative
  • took court action against your employer
  • made a complaint about your employer
  • took industrial action.

A valid reason must exist for an employer to dismiss an employee. The reason(s) must be based on the employee’s poor performance, conduct or changes to the operational requirements of the workplace. The reason for dismissal must be sound, defensible and well founded and cannot be capricious, fanciful, spiteful or prejudiced.

The provisions relating to unfair dismissal are contained in Part 3.2 of the Fair Work Act 2009 (Cth).

Who is eligible to make a claim under the Fair Work Act?

An employee is eligible to make a claim if they have been employed for at least 6 months (or 12 months if employed by a small business) and they:

  1. are covered by a modern award;
  2. are covered by an enterprise agreement; and or
  3. do not earn more than the high-income threshold which as at 1 July 2017 is $142,000.

You cannot bring an unfair dismissal claim if you are:

  • employed for a specific task or a specified period and the employment terminated on completion of the task or at the end of the specified period;
  • a casual employee engaged on a casual basis for a short period, in other words, the employment is not systematic and regular;
  • an apprentice or trainee employed for a specified period of time and the employment ended at the end of the specified period of time;
  • an independent contractor;
  • serving a period of probation or qualifying period, or
  • covered by a state award or enterprise agreement.

  • How do you make an application?

    A dismissed employee, or an employee threatened with dismissal, or the union can lodge an unfair dismissal application with the Fair Work Commission.

    How quickly must the application be made?

    An application must be made to the Fair Work Commission within 21 days of the dismissal. The 21 day period starts the day after the dismissal.

    How is the application dealt with?

    Once an application is lodged, a copy is sent to the employer for their response.The employer is required to respond to the application and must send a copy of their response to the employee. A conciliation conference will then be scheduled where a Commission conciliator will try to help the parties resolve matter in an informal manner, generally over the phone. Conciliation is voluntary however most matters resolve at conciliation and can avoid the time delays and costs of a formal hearing.

    If conciliation is unsuccessful, or if you choose not to attend conciliation, the application will proceed to a hearing or conference. A hearing is more formal and court like where the parties can exchange evidence, and the Commission Member will make a decision on the matter. A conference is less formal and generally involves the Commission assisting the parties to resolve the matter by way of mediation or conciliation.

    Where the Commission upholds a claim, it may order an employer to:

  • reinstate the employee to their former position;
  • re-employ the employee in another position on terms no less favourable than those on which the person was employed immediately before the dismissal;
  • provide back pay and other entitlements owing from the time of the dismissal, where reinstatement or re-employment is ordered
  • compensate the employee by ordering payment of an amount not exceeding the remuneration of the employee during the six months before the dismissal, where reinstatement or re-employment is considered impracticable
  • not dismiss the employee, where dismissal has been threatened.
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