The termination of an employee or being terminated is never an easy decision, but it must be conducted in a fair and proper manner.
A person is dismissed when a persons employment has been terminated at the employers imitative or a person was forced to resign because of the conduct or course of conduct engaged in by the employer.
What is an unfair dismissal?
An unfair dismissal under the air Work Act is satisfied when an employee has been dismissed and the dismissal was:
- harsh, unjust or unreasonable, and
- not consistent with the Small Business Fair Dismissal Code (in
the case of employees of a small business), and
- not a case of genuine redundancy.
When is a person protected from unfair dismissal?
An employee of a national system employer (called a national system employee) who has been dismissed is protected from unfair dismissal and eligible to make an application for unfair dismissal remedy if:
- they have completed the minimum period of employment
AND
- they earn less than the high income threshold (currently $148,700 per year), or
- a modern award covers their employment, or
- an enterprise agreement applies to their employment.
Useful links
Fair Work Commission
Fair Work Ombudsman
Is there a time limit for lodging an unfair dismissal application?
Yes, the employee must lodge an unfair dismissal claim within 21 days from the date of dismissal or such further period as the Fair Work Commission allows in ‘exceptional circumstances’.
What is the minimum period of employment?
Under the Fair Work Act the minimum period of employment is
- six months of continuous service or
- one year of continuous service where the employer is a small business
What is a small business?
A small business is a business that employs less than 15 persons irrespective of if they are full time, part time or regular casual employees.
Can I be fired by text message?
Under the case of Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292 it found that a person should not be fired by electronic means, unless there is a genuine apprehension of psychical violence or geographical impediment.
The dismissal of an employee should be done face to face.
What Remedies are there for an unfair dismissal?
The commission can order the reinstatement of the employee or the payment of compensation to a person if the commission is satisfied the employee was unfairly dismissed.
If I lose do I have to pay costs of the other party?
The commission can order another party to pay the costs of the other.
This tends to happen when the commission is satisfied that the matter was commenced or responded in a vexatious or unreasonable manner with no reasonable process of success.