According to the Fair Work Act, an unfair dismissal can take place in several ways.
Typically, for a claim of unfair dismissal to be successful, the Fair Work Commission will need to be satisfied that an employee was dismissed by their employer in circumstances that were:
- harsh, unjust or unreasonable;
- not a genuine case of redundancy; or
- contrary to the “Small Business Fair Dismissal Code”.
What constitutes unfair dismissal Australia?
Unfair dismissals can occur in a number of ways. Some examples of unfair dismissals include, but are not limited to:
If an employee is terminated by their employer for something the employee did not do, such as exhibiting poor performance or engaging in misconduct, the employee’s termination may be considered unjust.
Similarly, if there was no evidence to support the employer’s decision that the employee was not performing or engaged in misconduct, the employer’s decision to terminate the employee’s employment may be considered unreasonable (as well as unjust).
Finally, if an employee is terminated for something minor, but the punishment of termination did not “fit the crime”, the employee’s termination may be considered harsh.
Can I make an unfair dismissal application?
Perhaps! You generally need to work for your employer for a min of 6 to 12 months, and meet the salary requirements.
Our highly experienced team of unfair dismissal lawyers based in Perth, Western Australia, will be able to help you determine whether you can make an unfair dismissal claim and guide you through the unfair dismissal process.
To book an appointment with one of our unfair dismissal lawyers please call us on (08) 9470 2777 or request a call back.
What is the definition of dismissal?
The Fair Work Act defines what a dismissal is, situations that are considered to be a dismissal are:
- Where a person’s employment has been terminated on the employer’s initiative; or
- Where a person was forced to resign from his or her employment because of the actions of his or her employer.
The Fair Work Act also sets out many circumstances that are not considered to be a dismissal. This includes, where a person was employed for a specific task or period, and the employment has ended because the specific task or period has been completed.
What is constructive dismissal?
Constructive dismissal is also commonly referred to as a “forced resignation” which is where an employee is forced to resign from his or her employment because of the actions of his or her employer.
An example of constructive dismissal or forced resignation was demonstrated in – Hobbs v Achilleus Taxation Pty Ltd ATF the Achilleus Taxation Trust; Achilleus Accounting Pty Ltd ATF The Achilleus Accounting Trust [2012] FWA 2907.
In this matter:
- Mr Hobbs was employed by Achilleus Taxation Pty Ltd.
- Over 4 months Mr Hobbs was paid less than half of the wages he entitled to.
- After 4 months of being underpaid, Mr Hobbs resigned from his employment.
- The Fair Work Commission considered that this was a forced resignation due to the conduct of the employer.
What about casual employees’ unfair dismissal rights?
Generally, casual employees will only be protected by unfair dismissal laws if:
- They have been employed for a minimum of 1 year if they are an employee of a “small business”, or, 6 months if they are employed by a business other than a small business; and
- They were employed on a regular and systematic basis; and
- They had a reasonable expectation that their employment would continue.
What is a small business employer?
Whether a business is a “small business” is determined on a headcount of the number of employees employed by the business.
If a business employs less than 15 full-time, part-time employees they will be considered to be a small business.
Casual employees generally are not included in the headcount, unless the casual employees are employed on a regular and systematic basis.
What things does the Fair Work Commission consider in an unfair dismissal case?
The Fair Work Commission will take a number of factors into consideration when determining whether a dismissal was unfair,
The Fair Work Commission will consider:
- Whether there was a valid reason to dismiss the employee;
- Whether the employee was notified why they were being dismissed;
- Whether the employee was given an opportunity to respond to the allegations against them prior to the dismissal;
- Whether the employer refused the employee having a support person present during discussions related to the dismissal;
- Whether the employee had any previous warnings for poor performance prior to the dismissal;
- The size of the employer, and/or how the absence of human resources effected the dismissal process; and
- any other matters that the Fair Work Commission considers relevant. Typically, this involves consideration of whether the employee was treated differently to other employees, the employee’s work performance and how long the employee worked for the employer.
Can I claim compensation for unfair dismissal?
Yes. If the Fair Work Commission considers that an employee has been dismissed in circumstances that was unfair, the employee may be awarded compensation. The maximum is 6 months’ pay.
Can you sue an employer for unfair dismissal?
Yes. If you have been unfairly dismissed, you may be entitled to bring an unfair dismissal claim against your employer in the Fair Work Commission.
What are the time limits for making an unfair dismissal application?
There is a strict 21-day time limit to make an unfair dismissal claim with the Fair Work Commission.
In extraordinary circumstances, the Fair Work Commission may allow for an application to be filed outside of the 21-day time limit.
What are unfair dismissal conferences and hearings?
As a general rule, there are “2 stages” to the unfair dismissal process.
The “first stage” will involve an informal conciliation conference which occurs shortly after filing an unfair dismissal application. This conciliation conference conducted via telephone and gives the parties an opportunity to privately discuss resolution of the matter.
If the parties are unable to resolve the matter during the “first stage”, the Fair Work Commission will progress the matter to the “second stage”.
This “second stage” will involve a formal “hearing” of the unfair dismissal claim before the Fair Work Commission. Essentially, this hearing is a “trial” where legal submissions and evidence is produced before a “Judge” called a Commissioner.
What remedies are available in unfair dismissal proceedings?
If the Fair Work Commission finds that a dismissal was harsh, unjust or unreasonable, the Commission may explore a number of remedies.
Generally, the Fair Work Commission’s primary remedy is to reinstate the employee back into the position that they held with the employer prior to being dismissed, or a position that is no less favourable to the employee.
If the Fair Work Commission believes that reinstatement is not appropriate, the Fair Work Commission will then consider awarding compensation to the employee. In such a situation, the Fair Work Commission can consider awarding an employee compensation up to a maximum of 26 weeks of the employees’ salary.
Can costs be awarded in unfair dismissal cases?
Popular TV shows will have you believe that the person who is not successful at a hearing with have to pay the successful parties’ legal fees. Generally, in unfair dismissal claims, this is not the case.
More often than not, both parties will “wear” their own legal costs incurred in the proceedings; regardless of the outcome. However, you may be ordered to pay the other parties legal costs by the Fair Work Commission where:
- an application or response to an application was made vexatious or without reasonable cause, or
- if an application or response to an application has no reasonable prospect of success.
