Maurice Blackburn

Not all employees are able to make unfair dismissal applications and there are a number of exclusions that apply in respect of when a person can make an unfair dismissal application.

Can I make an unfair dismissal application?

Not all employees are able to bring an unfair dismissal claim. National system employees can take an unfair dismissal claim in relation to their employment, if they are not excluded from making a claim and:

• their employment is covered by a modern award
• their employment is subject to an enterprise agreement, or
• their rate of pay is less than an amount set out in the regulations (currently $108,300).

Most employees who are employed by incorporated companies are considered National system employees.  In Victoria almost all employees are considered National system employees.  These employees are able to bring an unfair dismissal claim, provided they are not caught by one of the exclusions.  If you are unsure whether you are a National system employee please contact Maurice Blackburn on 1800 810 812.

Am I excluded from making an unfair dismissal application?

The following employees are excluded from bringing an unfair dismissal claim:

• an employee who has been employed for less than 6 months unless the employer is a small business employer, in which case less than 1 year
• employees whose dismissals are consistent with the Small Business Fair Dismissal Code ("the Code") cannot bring an unfair dismissal claim, or
• an employee who is genuinely made redundant cannot bring an unfair dismissal claim.

Casual employees

For casual employees, their service does not count towards the 6 or 12 month qualifying period unless they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis.

Small business employers

A small business employer is defined as an employer that employs fewer than 15 people at the relevant time. This calculation is based on a simple head count.  However, there is a transitional period that extends until 31 December 2010.  During the transitional period, the calculation will be based on 15 'full time equivalent' employees.  From 1 January 2011, the 'head count' method will apply.

At the time of a worker's employment being terminated that person is to be counted when determining the number of employees, as are any other employees who are terminated at the same time.

Small Business Fair Dismissal Code

A dismissal is consistent with the Code if two threshold requirements are met.  Firstly, immediately before the dismissal or at the time of notice of dismissal, whichever happens first, the person's employer was a small business employer.  Secondly, the employer complied with the Code in relation to the dismissal.

The Code initially requires the employer to identify:

• the number of employees
• whether the employee being dismissed has been employed as a permanent employee or a regular casual for more than 12 months, and
• whether the employee is being dismissed due to redundancy or serious misconduct.

If the employee has been employed for over 12 months and has not been made redundant or dismissed for serious misconduct, then the employer is required to:

• warn the employee
• provide the employee with a reasonable amount of time to improve performance or conduct
• give the employee a reasonable chance to rectify the problem, and
• advise the employee of the reason for dismissal and give the employee an opportunity to respond.

Is the dismissal unfair?

When considering whether a termination of employment was harsh, unjust or unreasonable Fair Work Australia (FWA) will consider:

• whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
• whether the person was notified of that reason
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
• if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
• the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal
• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
• any other matters that FWA considers relevant.

If you would like advice on how these factors apply to your specific situation please contact Maurice Blackburn on 1800 810 856.

What is the definition of dismissal?

Dismissal can include where a person has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.  This is commonly referred to as "constructive dismissal."

A person is not considered to have been dismissed if they were employed under a contract for a specified period of time, specified task or for the duration of a specified season, and the employment was terminated at the end of the period, task or season.  However, the Act states that if a person was on a contract and the substantial purpose of the contract was to avoid obligations to not unfairly dismiss the employee then the employee is not precluded from making an unfair dismissal application.

An employee is not considered to be dismissed if they were on a training arrangement and the employment terminated at the end of the training arrangement. A person is also not dismissed if they have been demoted unless the demotion involves a significant reduction in remuneration or duties.

How does an unfair dismissal matter work?

Time for making an unfair dismissal application

It is important to note that the time to make an unfair dismissal application is now only 14 days.  The time may be extended if FWA is satisfied that there are exceptional circumstances, taking into account:

• the reason for delay
• whether the person first became aware of the dismissal after it had taken effect
• any action taken by the person to dispute the dismissal
• prejudice to the employer including prejudice caused by the delay
• the merits of the application, and
• fairness as between the person and other persons in a similar position.

Prior to dealing with the merits of the application, FWA is required to decide whether the application was made in time, whether the person has jurisdiction to make the application, whether the dismissal is consistent with the Code (if the employer is a small business) and whether it was a case of genuine redundancy.

Unfair dismissal conferences and hearings

FWA must conduct a conference or hold a hearing in relation to the application if the matter involves disputed facts.

If FWA decides to hold a conference, it must, when considering the application or informing itself in relation to the application, take into account any difference in the circumstances of the parties.  FWA must also take into account the wishes of the parties in the way it considers the application or informs itself in relation to the application.  FWA must not hold a hearing in a matter unless it considers it appropriate to do so taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter.

Costs in unfair dismissals

Costs are only awarded where FWA is satisfied that a party commenced an application or responded to an application vexatiously or without reasonable cause, or where it should have been apparent to the applicant or the respondent that the application or response had no reasonable prospects of success.

What remedies are available in unfair dismissal proceedings?

If FWA finds that a dismissal is harsh unjust or unreasonable the Tribunal may order that:

• the employee be reinstated, or
• the employee be awarded compensation not exceeding 26 weeks pay (if this is more than $54,150 then the maximum compensation that can be awarded is $54,150).

The Act explicitly states that FWA cannot as part of any compensation include a component for shock, distress or humiliation, or other analogous damages caused to the person by the manner of the dismissal.

What is the difference between unfair dismissal and unlawful dismissal?

An employee who is unable to take an unfair dismissal claim may be able to take an unlawful dismissal claim or a general protections claim.  It is also possible that an employee may need to decide whether to take an unfair dismissal claim or an unlawful dismissal or general protections claim.  An unlawful termination or general protections claim does not look at whether a dismissal was harsh, unjust or unreasonable instead it looks at whether the reason, or one of the reasons for termination was unlawful.  An employee has 60 days from the date of termination to take an unlawful termination or general protections claim.

I think I have been unfairly dismissed what should I do?

If you think you have been unfairly dismissed or you would like advice about your eligibility to take an unfair dismissal claim you should contact Maurice Blackburn immediately on 1800 810 856.