23
Feb
2021

Unfair dismissal claims are regularly brought by employees against employers upon termination of employment. However, strict timelines apply to both employees and employers. Further, strict guidelines apply in relation to who can make an unfair dismissal claim. Read on to find out more.

Under section 390 of the Fair Work Act 2009 (Act) a dismissed employee can make an unfair dismissal claim, by applying to Fair Work Australia (FWA) for relief on the basis that his or her dismissal was “harsh, unjust or unreasonable”.

Who can apply?

To be eligible to make an unfair dismissal claim:

1. An employee must have completed a minimum employment period – which is one year for small business employees and six months for others;
2. if the employee earns more than the high-income threshold of $108,300 (indexed annually), be covered by a modern award or enterprise agreement;
3. the employee was “dismissed” as provided for under section 386(1) of the Act (being that the employee had his/her employment terminated by the employer or the employee resigned under circumstances where he/she was forced to do so);
4. the employee was not dismissed in accordance with the Small Business Fair Dismissal Code (which applies to businesses with fewer than 15 employees);
5. the employee must be considered as a “national system” employee; and
6. the dismissal was not a case of a genuine redundancy.

Further, under section 382(a) of the Act, an employee will not be protected from unfair dismissal unless he or she has completed the “minimum employment period.” The period varies, depending on whether the employment was with a small business employer or larger employer.

Procedure

An employee who wishes to bring an unfair dismissal claim must complete and lodge an Application for an unfair dismissal remedy with FWA, within 14 days of the termination, as provided by section 394(2) of the Act. Usually, the steps involved in the unfair dismissal process are as follows:

1. the employee lodges an application;
2. the application is checked to ensure it is complete and valid;
3. the Employer is notified of the application by FWA;
4. the matter proceeds to a conciliation and/or subsequently a hearing; and
5. an unresolved application is determined by FWA following a conference or hearing.

FWA may choose to progress the matter to a hearing if FWA considers it appropriate to do so.

Factors considered by FWA in determining whether the dismissal was unfair

When determining whether a dismissal was harsh, unjust or unreasonable, FWA must consider the following factors, as set out in section 387 of the Act:

1. whether there was a valid reason for the dismissal relating to the employee’s capacity or conduct;
2. whether the employee was notified of that reason and whether the employee was given an opportunity to respond to the reason;
3. any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any dismissal-related discussions;
4. if the dismissal related to unsatisfactory performance;
5. the degree to which the size of the employer’s enterprise would be likely to impact on the dismissal procedures;
6. the degree to which the absence of dedicated human resources personnel in the company would be likely to impact on the dismissal procedures, and
7. any other matters that FWA considers relevant.

Remedies

If FWA finds that an employee was unfairly dismissed, it has the discretion to make:

1. an order requiring the employer to reinstate the employee and if reinstatement is made, a further order that the employee’s continuity of service be maintained and/or that any lost remuneration be paid, and
2. if FWA considers reinstatement to be inappropriate, FWA may make an order requiring the employer to pay compensation in lieu of reinstatement.

The advice above is intended as general advice only and may not apply to your specific circumstances.

We are experienced in representing and advising both employees and employers and understand that each matter is unique and requires tailored advice. For further information on your particular matter, contact us on 02 9653 9466.