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Employment Law

Unfair Dismissals 

Unfair dismissal generally occurs where a termination at the initiative of the Employer has been harsh, unjust or unreasonable, was not a case of a genuine redundancy and inconsistent with the Small Business Fair Dismissal Code (if applicable). It can also occur where an employee resigns from employment but the resignation was forced by something the employer did.

In determining whether the termination was harsh, unjust or unreasonable, Fair Work Australia must have regard to a number of factors including:

  • whether there was a valid reason for the termination;
  • whether the Employee was notified of that reason and given an opportunity to respond;
  • if the termination related to unsatisfactory performance by the Employee, whether the Employee had previously been warned about that unsatisfactory performance; and
  • the degree to which the size of the Employer’s business, or the absence of dedicated human resource management specialists, may have had an impact on the termination procedures.

In determining whether there was a genuine redundancy situation, The Fair Work Commission gives consideration to whether changes in operational requirements by the Employer led to the Employee’s functions being no longer required to be performed by any other person and whether the Employer has complied with its obligations under any applicable terms and conditions of employment with the Employee.

General Protections Disputes / Dismissal 

The general protections laws have been introduced to provide protection to employees. An employer must not take any 'adverse action' against an employee because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right. A general protections dispute claim can also be commenced by a person who has been discriminated against, victimised, or has been subjected to other unfair treatment. 

Unlawful Termination

Unlawful termination occurs where the termination has been at the initiative of the Employer and was based on a failure to give the Employee the required notice or payment in lieu of notice and/or reasons concerning alleged discrimination including one or more of the following:

  • temporary absence from work because of illness or injury;
  • trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
  • non-membership of a trade union;
  • seeking office as, or acting or having acted in the capacity of, a representative of employees;
  • filing a complaint, or participation in proceedings, against an employer involving alleged breaches of laws or regulations or recourse to competent administrative authorities;
  • race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • refusing to negotiate, sign, vary or terminate an individual transitional employment agreement;
  • absence from work during maternity leave or other parental leave;
  • temporary absence from work for voluntary emergency management activity

Time to commence a claim

A claim at The Fair Work Commission for unfair dismissal, under the general protections dismissal laws or for unlawful terminations must be made within 21 days of the termination coming into effect. However, there are limits as to persons who may be eligible to make an application.

The Process

Once a claim is lodged, the Employer will be informed of the claim by The Fair Work Commission and must respond within 7 days. The matter will then be listed for a Conciliation Conference (for unfair dismissals and unlawful termination claims) or Conference (for general protections dispute) where an attempt will be made to settle the matter by negotiation and agreement. If the matter does not settle at this stage, the Employee may then elect to proceed with the matter to a final hearing at the Fair Work Commission or commence proceedings in the Federal Court or the Federal Circuit Court of Australia depending on the type of claim.

Employers may also apply to dismiss the application for want of jurisdiction or because the application as frivolous, vexatious or lacking in substance. In such a situation, the matter will be listed for a hearing of the Employer’s application by the Fair Work Commission.

How we may assist

If you have been a victim of unfair dismissal or unfair treatment at your workplace, we would be pleased to discuss your circumstances to assess if we can assist you in a claim.