Most employer/employee relationships are now governed by the Fair Work Act 2009 (Cth) which sets out minimum standards of employment and provides protection for employees against unfair or unlawful dismissal.
If you believe you have been unfairly or harshly treated in your workplace, you may be entitled to make a claim through the Fair Work Commission.
This article provides an overview of unfair and unlawful dismissal in the workplace. The information is intended to be general only, and you should obtain legal advice relevant to your particular circumstances.
Termination and unfair dismissal
Termination of employment occurs through the voluntary resignation of a worker or dismissal by the employer on the grounds of redundancy or for other reasons.
When terminating an employee, employers must act in a fair and appropriate manner, otherwise the termination may constitute an unfair dismissal. An unfair dismissal is a dismissal that was:
- harsh, unjust or unreasonable;
- inconsistent with the Small Business Fair Dismissal Code;
- not a genuine redundancy.
If you have been dismissed from your workplace and believe the circumstances surrounding your termination were harsh, unjust or unreasonable, you may be entitled to take action against your employer to enforce your rights. Remember, a ‘dismissal’ may also include situations where you felt compelled to resign due to certain conduct engaged in by your employer. This is known as ‘constructive dismissal’.
In considering whether a dismissal is harsh, unjust or unreasonable, the Commission will consider a range of matters including:
- whether there was a valid reason for the dismissal, including issues of the safety and welfare of other employees, and whether the worker was notified of that reason;
- whether the worker was given an opportunity to respond to issues of capacity or conduct;
- whether the worker was unreasonably refused to have a support person present during discussions regarding the dismissal;
- whether issues of unsatisfactory performance, if relevant, were raised before the dismissal.
The size of the employer’s business and an absence of human resource personnel and how that may have impacted the dismissal processes followed may also be taken into account.
A legal advisor can help determine whether the circumstances leading to your dismissal may have been harsh, unjust or unreasonable.
An employee will not be considered to have been unfairly dismissed if the termination was due to a genuine redundancy.
What is a genuine redundancy?
A genuine redundancy occurs when:
- the employer no longer requires the employee’s job to be done by any other person, or the employer becomes bankrupt or insolvent;
- the employer has complied with any consultation obligations relevant to an enterprise agreement or award; and
- it would not have been reasonable for the employer to redeploy the employee within the enterprise or other associated entity – the employer must ensure there is no suitable alternative position available.
A genuine redundancy can generally be shown by the introduction of new technology which replaces human labour, the discontinuance of the business operations, relocation of the business interstate or overseas, or the restructuring of an organisation.
Subject to the employee’s length of service and type and conditions of employment, the employee may be entitled to receive redundancy pay.
If a purported redundancy is not genuine, then the employee may pursue a claim for unfair dismissal. Depending on the circumstances, a redundancy that is not genuine may be shown, for example, if an employer advertises the same position immediately after terminating an employee.
Who is protected from unfair dismissal and what are the remedies?
If the Commission is satisfied that a person protected under the Act has been unfairly dismissed it may order reinstatement (to the previous position or another position with no less favourable terms) or the payment of compensation.
Employees are generally protected from unfair dismissal if they are covered by a modern award, an enterprise agreement or earn a salary below the (indexed) high income threshold (currently $153,6000) and have:
- completed 12 months’ employment with a small business (a business with fewer than 15 employees); or
- completed 6 months’ employment with a larger business.
Note, small business employers are provided additional protection from an unfair dismissal claim if the dismissal is consistent with the Small Business Fair Dismissal Code.
Although the primary remedy for unfair dismissal is reinstatement, this may not be feasible in the circumstances. In such cases compensation may be awarded in accordance with the thresholds set out by legislation.
Other protections – unlawful dismissal
Sometimes a person may not meet the criteria required to pursue an unfair dismissal claim however there may be other options available to enforce their legal rights.
A worker may take action against an employer for certain unlawful activities (adverse action) under the general protection provisions of the Fair Work Act or for discriminatory conduct, harassment or bullying.
Discrimination may be on grounds of race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnic, national extraction or social origin.
A claim may be pursued in circumstances where employment is terminated for a range of unlawful reasons such as temporary absences related to illness or injury, union membership, making a complaint or participating in an inquiry or legal proceedings against an employer, or absences during parental leave.
Each matter must be assessed in light of the relevant circumstances. We recommend that all employees experiencing issues in their workplace keep written records of incidents, discussions, negotiations and performance reviews.
If you are confronting a workplace issue, it is natural to feel vulnerable and confused. If you have been terminated and are unsure whether the termination was lawful, or if you are facing disciplinary action in your workplace, obtaining professional advice can help you to understand, and protect your legal rights.