A dismissal occurs when an employee is terminated at the employee’s initiative, or when the employee is forced to resign because the employer acts in a way which makes continuation of the employment relationship untenable.
What is unfair dismissal?
A dismissal is said to be unfair where:
- an employee is dismissed; and
- the dismissal was harsh, unjust or unreasonable, and
- the dismissal was carried out in accordance with the Small Business Fair Dismissal Code (if the employer is a Small Business; and
- the dismissal was not a case of genuine redundancy.
When deciding an unfair dismissal claim, the Fair Work Commission considers whether a dismissal was harsh, unjust or unreasonable in order to determine whether or not to make an order in favour of a dismissed employee.
A “harsh”, “unjust” or “unreasonable” dismissal is unfair
The terms “harsh”, “unjust” and “unreasonable” have specific meanings within the unfair dismissal regime. Here some examples of how each term applies in an unfair dismissal dispute: A dismissal may be:
- unjust if an employee was dismissed following allegations of misconduct but the employee was not guilty of the alleged misconduct
- unreasonable if the evidence does not support the conclusion (say, if the evidence showed conduct deserving of a warning but an employee was dismissed instead)
- harsh if the outcome of the employer’s disciplinary process is disproportionate to the gravity of the misconduct.
Sometimes a dismissal may fit into two or more types of unfair dismissal and facts of a specific dismissal may overlap the different types.
Unjust ground for unfair dismissal
The term unjust relates to the truth of the reason for termination. For instance, an employee may have been dismissed for conduct he or she simply did not commit, or the dismissal may have occurred because of an uneven application of the employer’s standards. An example of this is when an employee is dismissed for conduct that is acceptable to the employer (that is, if another employee engaged in the same conduct as the dismissed employee, the other employee would not be dismissed).
“Meredith was terminated after her employer alleged that she forgot to lock the store room at the end of her shift. It later turns out that it was Lexie who was responsible for locking up the store that night. Meredith dismissal was unjust.”
Unreasonable ground for unfair dismissal
The term “reasonable” relates to the reasonableness of the dismissal and the reasonableness of the employer’s conclusions regarding the dismissal. This includes whether or not it was reasonable to decide to dismiss an employee based on the available evidence.
“Jackson was late for his shift one morning because his car had broken down on the way to work. His employer terminated him after he arrived at work, stating that he ‘deliberately and maliciously decided to show up late’ and ‘did not show enough dedication to his job’. Jackson’s dismissal was unreasonable.”
Harsh ground for unfair dismissal
The term “harsh” is given a wide interpretation. The Fair Work Commission takes into account:
- the consequences of termination on the employee (including economic consequences)
- the method of the dismissal
- the timing of the dismissal
- the proportionality of the dismissal with the misconduct alleged.
Other factors of the employee that the Fair Work Commission takes into account include:
- length of service
- qualifications and ability to find employment following termination
- number and age of dependents
- assets and liabilities (debts)
- literacy levels
“Richard is a 62 year old unskilled labourer in a factory. He and his ailing wife live alone and he is the sole provider for his wife. He has been performing poorly over the past year. The employer has placed him on a performance management plan but he has not improved. The employer finally decided to dismiss him and sent him his termination letter whilst he is on personal leave caring for his wife. Richard’s dismissal was harsh”
Richard may be successful with an unfair dismissal claim because his dismissal was harsh given his personal circumstances (age and skill level), along with him being dismissed while on personal leave which meant that he did not have the opportunity to respond to the allegations of the employer.
A redundancy is said to be genuine when that person’s job is not needed anymore and the employer has followed consultation requirements within the award or agreement.
The time limit for making an application for unfair dismissal is 21 days from the date the dismissal took effect. You must also have been employed by the employer for a period of at least six months (or 12 months if the employer is a small business employer).
If a dismissal is found to be unfair, the Commission can order that the employee be reinstated, or that the employee is awarded compensation (not exceeding 26 weeks of pay).
Who is protected from unfair dismissal?
Permanent employees or long-term regular and systematic employees:
- who have completed at least 6 months of continuous service (or in the case of a small business employer, 12 months); and
- earn less than the high-income threshold or are covered by an enterprise agreement or modern award.
What can we help you with?
IR Advocates can provide a cost-effective way of resolving your dispute. Our fees are scaled to ensure that you receive as much of your entitlements and compensation as possible. We will assist you every step of the way from drafting an initial application right through to conciliation and collection of your entitlements.
What are general protections?
Every Australian employer and worker covered by the National Employment Standard is protected under the Fair Work Act 2009 against adverse action in the workplace. These general protections ensure that workplace rights and the exercise of workplace rights (or choice to not exercise workplace rights) are preserved. also protects against adverse action from an employee engaging in industrial activities, and protects employees from discrimination and sham arrangements.
Under section 340 of the Fair Work Act 2009, an employer or employee is prohibited from taking adverse action against another person in the workplace because the other person has a workplace right, exercises (or does not exercise) the workplace right, or proposes to exercise (or not to exercise) that workplace right.
What can we help with?
If your general protection claim relates to a dismissal, you must apply to the FWC within 21 days from the date the dismissal took effect.
Conciliation and arbitration offer cost-effective, confidential avenues of resolving disputes compared to court proceedings. IR Advocates can help you pursue your general protections application through the conciliation or arbitration process in the Fair Work Commission. We will assist you in preparing your application and submissions, and represent you at Fair Work Commission conciliation hearings to ensure the best possible chance that your dispute is resolved and you receive the outcome you deserve.
What Workplace Rights are protected under the Fair Work Act?
There are several “workplace rights” that employers and employees enjoy in the workplace. Within the context of a workplace, workplace rights include any of the following:
- Being entitled to a benefit or having a role or responsibility under a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body.
- Being to initiate or participate in a process or proceedings under a workplace law or workplace instrument.
- Having the capacity under workplace law to make a complaint or inquiry about compliance with a workplace law or workplace instrument or in relation to a person’s employment.
It is a breach of the Fair Work Act 2009 for an employer to take adverse action against any of the abovementioned workplace rights.
What does "taking adverse action" against an employee look like?
An employer cannot take adverse action against an employee if he or she exercises (or does not exercise) a workplace right. Adverse action includes:
- Dismissing the employee;
- Injuring the employee in his or her employment;
- Altering the position of the employee to the employee’s prejudice; or
- Discriminating between that employee and other employees.
Additionally, an employer must not take, or threaten to take action with the intent of coercing an employee from exercising or not exercising a workplace right.
Case study - Jessica experiences adverse action in the workplace
Jessica works as a part time waiter in a cafe and is employed under the Restaurant Industry Award 2020. She believes that she is being underpaid and exercises her workplace right by querying her wage payment with her employer.
About a week after that conversation, the employer changes Jessica’s roster to remove her from all penalty shifts and offers them to Robert because Robert “just keeps his head down and does not question the employer on how it runs its business”. The change to Jessica’s roster is adverse action and it was taken as a result of Jessica exercising her workplace right. Such conduct is prohibited by the Fair Work Act 2009.