Who is protected by unfair dismissal laws?

Employment Law: 22 March 2019

Unfair Dismissals under the Fair Work Act 2009 (Cth)

Employees will be protected from unfair dismissal when they have completed the minimum employment period, which is:

• 12 months for small businesses; and
• six months for other businesses. 

A small business employer is one who employs less than 15 full-time equivalent employees.  From 1 January 2011, a small business employer will be one with less than 15 full-time employees.

The employee must also either be covered by a modern award, an enterprise agreement or earn less than the high income threshold (currently $113,800 per annum). 

It is also possible in some circumstances for casual employees to make a claim for unfair dismissal, provided they fulfil the above criteria and:

• were employed on a regular and systematic basis; and
• had a reasonable expectation of continuing employment.

Dismissal

In order to access the unfair dismissal regime, the employee must have been dismissed.  Employers need to be aware that dismissal may include situations where an employee has been forced to resign due to the employer's behaviour.

Genuine Redundancy

A dismissal will not be unfair if it is a case of genuine redundancy.  In order for a redundancy to be genuine, the employer must not require the employee's job to be performed by anyone because of changes in the operational requirements of the employer's business.  Further, the employer must have complied with any applicable consultation requirements.  Finally, it must not be reasonable for the employee to have been redeployed within the employee's business.

Small Business Fair Dismissal Code

Small business employers must also comply with the Small Business Fair Dismissal Code (the Code).  If the Code is not complied with, the dismissal may be unfair.

Harsh, Unjust or Unreasonable Factors

For a dismissal to be unfair, it must have been harsh, unjust or unreasonable.  In determining whether a dismissal is harsh, unjust or unreasonable, Fair Work Australia (FWA) will consider various factors including:

• whether there was a valid reason for the dismissal;
• whether the employee was notified of the reason for dismissal;
• whether the employee was provided with an opportunity to respond to issues of capacity or conduct;
• whether the employer refused to allow the employee to bring a support person to meetings; and
• whether the employee was provided with warnings.

Applications to Fair Work Australia

Applications for unfair dismissal must be made to FWA within 14 days of the dismissal occurring.  In some exceptional circumstances, FWA may allow an application to be made out of time. 

Once an application has been lodged, FWA will notify the employer who will be required to lodge an Employer Response to Application for Unfair Dismissal Remedy form within a specified period of time.

A conciliation conference will then be held and led by a FWA conciliator, and the parties will attempt to reach a resolution. If the matter does not reach resolution, a hearing may be scheduled.

Remedies for Unfair Dismissal

The preferred remedy for unfair dismissal is reinstatement.  However, where reinstatement is not appropriate, compensation may be ordered.

With Kate Oaten