Unfair Dismissal and the Fair Work Commission

Unfair Dismissal and the Fair Work Commission

What is unfair dismissal?

Unfair dismissal is a dismissal that is harsh, unreasonable or unjust. It is not considered an unfair dismissal if there has been a genuine redundancy.

If you work for a small business of less than 15 employees, an unfair dismissal is one that doesn’t comply with the Small Business Unfair Dismissal Code.

If you believe you have been unfairly dismissed, you may be able to apply to the Fair Work Commission (FWC) for a remedy to resolve the situation.

What is harsh, unjust or unreasonable?

There may be overlap between the three terms. A dismissal may be:

  1. Unjust if the employee was not guilty of the alleged wrongdoing.
  2. Unreasonable because the employer did not have enough evidence to support their conclusion.
  3. Harsh on the employee because of the financial consequences of being dismissed.
  4. Harsh because the dismissal was a disproportionate response to the wrongdoing.

Can I apply to have my dismissal reviewed?

  1. If you work for a small business of less than 15 employees, you need have been employed for at least 12 months.
  2. If you don’t work for a small business, you need to have been employed for at least 6 months.
  3. You must be covered national unfair dismissal laws.
  4. You must earn less than the high income threshold (with some exceptions).

Who is covered by national unfair dismissal laws?

People who are employed under the national workplace relations system:

  1. In New South Wales, Queensland and South Australia: employees of private enterprise.
  2. In Victoria: all employees except law enforcement officers and executives in the public sector.
  3. In the Australian Capital Territory: all employees.
  4. In the Northern Territory: all employees except members of the Police Force.
  5. In Tasmania: employees of private enterprise and local government.
  6. Employees of the Commonwealth or a Commonwealth authority.
  7. Waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce.

If your employment does not fall under the national workplace relations system, you may still be able to apply for a remedy for unfair dismissal under your State’s laws.

High Income threshold

Currently, the high income threshold has been set at $133,000 per annum. The FWC sets the figure on 1 July each year.

If you earn more than the threshold, you may still be eligible to apply for an unfair dismissal remedy if you’re covered by:

  1. a modern award; or
  2. an enterprise agreement

Small Business and the Small Business Unfair Dismissal Code (the Code)

The number of employees in a business is determined by counting all full time and part time employees as well as casual employees who are employed on a regular and systematic basis. This number includes the person(s) who have been dismissed.

The Code states that:
“It is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal”.

This conduct includes:

  • Theft.
  • Violence.
  • Fraud.
  • Serious breaches of workplace health and safety procedures.

If an employer wants to otherwise dismiss their employee based on their conduct or performance, they have to give written warning to the employee and a chance for the employee to respond and improve their conduct.

In giving the employee a chance to rectify the issue, the employer may need to provide necessary training and ensure that the employee understands the employer’s job expectations.

What do I do if I think I’ve been unfairly dismissed?

You have 21 days from the day after your dismissal to apply to the FWC.

Once you apply to the FWC, a copy of your application will be sent to your former employer and the FWC will ask your employer for a response.

After the FWC has received a response from your employer, you will be invited to participate in a voluntary conciliation. This is an informal telephone meeting between yourself, your employer and a FWC Conciliator. Most unfair dismissal cases are resolved at this meeting.

Up until this point, the FWC does not assess the fairness (or unfairness) of your dismissal. However, if your case can’t be resolved at conciliation, it will proceed to a conference or hearing. At this point, a Member of the Commission will look at the circumstances of your dismissal and decide whether it was unfair.

What does the Member consider when determining if my dismissal was harsh, unjust or unfair?

In considering whether a dismissal was harsh, unjust or unreasonable, the FWC must take into account (under section 387 of the Fair Work Act 2009 (Cth)):

  1. whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees);
  2. whether the person was notified of that reason and whether they were given a chance to respond to any reason related to their capacity or conduct;
  3. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
  4. if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about the unsatisfactory performance before the dismissal;
  5. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  6. the degree to which the absence of dedicated HR management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  7. any other matters that the FWC considers relevant.

What remedies are available to me?

At conciliation, the remedies through private settlement may include:

  • Reinstatement.
  • Compensation for lost wages.
  • A statement of service.
  • An apology.
  • A non-disparagement agreement (neither party can speak badly about the other).

At a conference or hearing, if the Member decides that you were unfairly dismissed:

  • Reinstatement and payment of lost wages.
  • Compensation of lost wages only where reinstatement is inappropriate.

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