Protection from Unfair Dismissal

Protection from Unfair Dismissal

For a variety of reasons employers at one point or another may need to dismiss an employee. How you go about it can make a big difference!

Under the national workplace relation system employees are covered by unfair dismissal laws. Unfair dismissal occurs where an employee makes an unfair dismissal remedy application and Fair Work Australia finds that:

• the employee was dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy, and
• the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.

A person is eligible to make an application for unfair dismissal if they have completed the minimum employment period of: one year – where the employer employs less then 15 full-time equivalent employees (a small business employer), and six months – where the employer employs 15 or more full-time equivalent employees. Employees have 14 days from the dismissal coming into effect to lodge an application for unfair dismissal.

Once an employee has lodged an unfair dismissal remedy application, Fair Work Australia will notify the employer and arrange a conciliation meeting to help both sides to resolve the matter. Conciliation is an informal, private and confidential process, where an independent mediator works to bring both parties to an agreed resolution. If a resolution cannot be reached through the conciliation process then a formal hearing will take place. If the hearing results in Fair Work Australia finding the dismissal unfair, the employer can be ordered to either:

• reinstate the employee, or
• compensate the employee for up to 26 weeks pay (up to a maximum amount of $56,900).

What should you do when dismissing an employee?

If you have less than 15 employees, the first thing you should do is download a copy of the Small Business Fair Dismissal Code. The Code has a Checklist designed to help small business employers assess and record their reasons for dismissing an employee. It is in the interests of the employer to complete this checklist at the time of dismissal and to keep it in case of a future unfair dismissal claim.

Under the code it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be valid and based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem.

If an employee makes an unfair dismissal remedy application we recommend that you contact our office for advice and assistance.

For more information on unfair dismissal go to: FairWork Ombudsman