Many of us rely on our employment as our means of livelihood, which protects our families’ standard of living. Losing your employment can jeopardise this security and put yours and your family’s future at risk. , It is important to understand your rights if you have been dismissed - especially if you have been unfairly dismissed.
Unfair dismissal – what exactly is it?
In NSW, if you are employed on a permanent basis (or a long term casual employee), your employer can only terminate your employment in a way that is not harsh, unjust or unreasonable. Many employers rely on a “valid reason” for dismissal in arguing that a dismissal was not unfair. A valid reason can be a reason based on your capacity to work or your performance at work, your conduct, or the employer’s change in need no longer requiring the work you were hired to do to be performed (i.e. a redundancy). Usually, before being able to legally dismiss you on the basis of your capacity to work, or, prior to dismissing you based on your conduct, the employer is required to give you a warning and a reasonable opportunity to correct your behaviour.
If your employer fails to give you a warning and a reasonable correction opportunity, this could mean that your dismissal is considered an unfair dismissal. Unfair dismissal occurs where an employee is terminated from their position in a manner that was unreasonable, unjust or harsh.
Section 387 of the Fair Work Act 2009 (Cth) sets out the criteria to consider when determining if a dismissal is harsh, unjust or unreasonable. Examples of this criteria are:
· whether the employee was notified of the reason for dismissal,
· the degree to which the size of the employer’s business would impact the procedures in effecting the termination,
· whether dedicated HR personnel are engaged by the business, and
· whether the employee was denied a support person when dismissal discussions took place.
The section 387 factors must be considered when assessing and making an application for unfair dismissal with the Fair Work Commission.
It is also important to note that not all dismissals are regarded as unfair dismissal. Unfair dismissal does not typically arise where there has been a genuine redundancy in the business due to your position no longer being required in the business, changes in operational requirements of a business or where you have been consulted prior to the redundancy.
Who is protected by Unfair Dismissals?
There are a wide range of individuals who are protected under the unfair dismissal laws in the Fair Work Act 2009 (Cth). The law extends to:
· Employees who have worked at least 6 months in a business that employs more than 15 employees; or
· Employees who have worked at least 12 months in a business but where less than 15 people are employed in the business.
If the employee was receiving an income greater than $142,000, they must be covered by an enterprise agreement or an award in order to be eligible for this process.
Those who are not covered by unfair dismissal laws are:
· Independent contractors;
· Employees who resign (and are not forced to resign by their employer);
· Labour hire workers who are terminated from the company hiring them (but not from their employer); and
· Vocational placement workers.
Employees who have had their employment terminated by a business with fewer than 15 employees may not be eligible to make an unfair dismissal application, however this is assessed on a case by case basis. Instead, small businesses are covered by the Small Business Fair Dismissal Code. The code highlights what is required by small businesses when immediately or otherwise terminating a person’s employment, and whether the dismissal was unfair.
How do I raise a claim?
Unfair Dismissal claims are initiated in the Fair Work Commission by submitting an application form either online, by email or by post. The Application must be submitted within 21 days of your dismissal taking effect, unless exceptional reasons exist to explain why this was not possible. This 21-day time frame is extremely strict, and if it is not met, the employee is required to seek special leave from the Fair Work Commission to be granted the right to file the claim outside of this deadline.
The current price to submit an application is $70.60.
The application form requires information about the details of your employment, informing the Fair Work Commission of when you were notified of dismissal and the date the dismissal took effect. The form must also state the reasons for dismissal and why you believe it to be unfair, and the outcomes you seek out of the unfair dismissal process.
The Fair Work Commission will then provide a copy of your Application to your former employer, who is given the opportunity to respond or object to any claims you have made, within seven days.
What happens after the application?
The Fair Work Commission will then allocate a date for a conciliation conference. This usually occurs through a telephone call, giving an opportunity for the employee and former employer to attempt to resolve issues through negotiation, with an independent third party present in the discussion.
If a resolution cannot be reached, the Fair Work Commission will hold what is known as a jurisdiction and arbitration conference. At this stage, a Commissioner will determine if any objection made by an employer is valid and finally determine whether dismissal was unfair. The decision made at this point is binding on the employer and employee.
I have been dismissed wrongly but I don’t believe I have been unfairly dismissed. What can I do?
In addition to unfair dismissal, there are further unlawful reasons that your employer cannot use to terminate your employment. These reasons are separate from unfair dismissal, but are still commenced with the Fair Work Commission, and are called “general protections”. General protections are designed to:
- Protect workplace rights;
- Protect freedom of association;
- Protect individuals from workplace discrimination; and
- Provide relief for individuals who have been a victim of any of the above.
In short, an employer (or a person) cannot lawfully take any ‘adverse action’ against an employee (or another individual) because that person has a workplace right that they have exercised (or even proposed to exercise). General protections apply to contraventions of the Fair Work Act 2009 (Cth) when an individual has been dismissed, or, when an individual has not been dismissed and their general protections have been breached. If the contravention involves a dismissal, the employee again has a strict 21-day deadline to lodge an application.
Coutts understand the stress involved in being unfairly dismissed from employment, or a dismissal involving a breach of general protections, and are happy to assist you with this process. Our team have experience in determining likelihood of success, considering employee eligibility across business structures, drafting applications, representing at conciliation, jurisdiction and arbitration conferences.