Dismissal – Fair or Unfair?

Memorandum

Given the current economic climate and perceptions held by either employers or employees in regards to their rights, this may give rise to the allegations of being dismissed unfairly.

Both employers and employees should be aware of processes they can take to avoid unwanted stress, obtain justice or resolution before the Fair Work Commission in terms of an Unfair Dismissal Complaint.

When can an employee bring about an unfair dismissal claim?

An employee cannot bring about an unfair dismissal claim if it occurs in the first 12 months of their employment, which means they cannot take an employer to the Fair Work Commission simply because they believe their dismissal was “harsh, unjust or unreasonable”, which could give rise to the notion of an unfair dismissal.

However, this does not mean an employer can dismiss an employee for any reason, even in the first 12 months of employment. An employer remains still bound by the general protections of the termination provisions of the Fair Work Act (FWA).

Does Big Business have a different set of rules with respect to dismissals of employees?

Small business owners do not have the ability to use a HR department without the resources of bigger businesses, the FWA streamlines the process small businesses need to adhere to, to comply with FWA.

If an employer has (including associated entities) a number of less than 15 staff, these small business will fall under the streamlined dismissal laws of the FWA. This includes full-time, part-time and permanent employees, but not independent contractors and some casual employees (who have not been employed on a regular or systemic basis).

Can an employee make an unfair dismissal application if he or she resigns?

In certain circumstances an employee has a right to bring about an application even if they resigned.

For this to happen, they must be able to prove that the actions of the employer (or one of the other workers in the business) forced them to resign.

This resignation is termed as a “constructive dismissal”. In that regard an aggrieved employee must establish that they were forced to resign which could be construed as being unfairly dismissed as the employee is not given due process of having their employment terminated. If the employee can establish that they have been constructively dismissed, the same penalties apply to being unfairly dismissed.

FWA – the rights to have general protections

A general protections (for unlawful termination) claim is a different concept to unfair dismissal.

The general protections provisions, which apply to all workers (regardless of their length of employment), prohibit the employer from taking adverse action against any employee due to:

  • Race, colour, sex, sexual orientation, age, religious beliefs, mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (although it makes an exception if it is an inherent requirement of the job);
  • Being away from work due to illness or injury;
  • Not being a union member;
  • Being on parental leave, paid or unpaid;
  • Being away doing emergency volunteer work; and/ or
  • Filing a complaint or commencing proceedings against you or someone you employ.

Penalties can be substantial for an employer breaching these protections plus having the unwanted problem of any conviction and the potential publicity that comes with it. In this regard, it is paramount employers abide by the law and protect themselves with the assistance of their legal team.

If you dismiss an employee for any of the above reasons, it is likely an employer will face heavy fines (currently up to $10,800 for an individual and $54,000 for a company) as well as the prospect of having to pay the employee compensation or even being made to rehire them.

Usually, a worker has 21 calendar days from the date their dismissal took effect to bring an unlawful termination claim. There are certain allowances for the acceptance of a delay but if an unfair dismissal claim is filed outside the 21 day period in our experience the Fair Work Commission will allow conciliation to occur prior to any determination of the claim being time barred.

Can an employee dismiss an employee without notice?

Yes, but in certain situations.

An employer can dismiss an employee without giving any notice should that employee act or engage in matters of serious misconduct.

An employer on discovery of an employee’s actions that include theft, fraud, violence or serious safety breaches (which includes the safety of other employees), has this right to protect the interests of the employer and other employees.

If such conduct could amount to a criminal breach, we advise that a police complaint and report should always be made to ensure that this type of dismissal is supported.

An employer does not have to rely on a criminal conviction to justify the dismiss of an employee immediately.

So the employee brings an unfair dismissal action against an employer…..

Firstly do not ignore such a claim or action. It is vital to respond and comply with the FWA in order to establish your position and assist the Commissioner resolve any complaint made.

In this regard, it is requisite that upon you receiving a FWA complaint that you respond either by way of lodging a form 3 and/or form 4.These forms and the online tools of the Fair Work Commission can assist you in filing your response. The Fair Work Commissioner’s office will offer assistance but not legal advice. It can be a stressful time and assistance of a legal nature should be sought, possibly before any dismissal or termination takes place.

SLF Lawyers

We can assist you.

There are a number of issues that we can advise you on should the matter of an employee’s employment come to a termination. We are experienced in such matters and we can assist with:

  • Developing policies to assist with managing risk if an employee’s work contract is terminated;
  • Calculating an employee’s entitlement whether they remain employed or are leaving their employment with you;
  • Advising you on any alternatives to dismissal; and
  • Representing you in the Fair Work Commission’s conciliations, mediation or in later court proceedings.

Contact Us

Our Brisbane Partner, Mark Smith can assist.

His contact details are:

Mark Smith

SLF Lawyers

Phone: 07 3839 8011

Email: msmith@slflawyers.com.au

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