Unfair Dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The employee’s dismissal must not be a case of genuine redundancy and not inconsistent with the Small Business Fair Dismissal Code (which applies only where the employer is a small business employer).
Was the dismissal harsh, unjust or unreasonable?
- Was there a valid reason for the dismissal related to the person’s capacity or conduct?
- Was the person notified of the reason, or warned about their unsatisfactory performance?
- Was the person given any opportunity to respond to that reason?
- Was there an unreasonable refusal by the employer to allow the person to have a support person present to assist any discussions relating to the dismissal?
Who can make an unfair dismissal claim?
A person can make an unfair dismissal claim if they have:
- completed the minimum employment period;
- are covered by a modern award or an enterprise agreement; and
- earn less than the maximum high-income threshold prescribed by the FWA and regulations.
Key Considerations
- Employees have 14 days to apply to the Fair Work Commission for unfair dismissal.
- Employers have 14 days to respond to the application.
- Employees working for a small business have to be employed for at least 12 months before they can apply.
Applying for Unfair Dismissal
To make a claim for unfair dismissal, the employee must fulfil some criteria. First, the employee must have been employed for the minimum qualifying period (which varies depending on whether the employer has fewer than 15 full-time staff or you were employed as a casual). Second, the employee must have earned less than the high income threshold or be covered by a Modern Award or Enterprize Agreement. Third, the employee must have been dismissed by the employer or been given a redundancy that is not genuine. Finally, the employer must have 15 or more staff.
Costs
The fee for lodging an unfair dismissal application with the FWC is $67.20. The FWC can waive the application fee if it is satisfied that a person making an application will suffer serious financial hardship if the person is required to pay the fee.
Remedy
If Fair Work Australia finds that an employee has been unfairly dismissed, it can order the employer to give their job back (with back pay) or order them to pay compensation of up to six months pay or $59,050 (the lesser of the two amounts). Where an employee is to be appointed to a position other than their original position, the appointment order will protect the employee’s minimum terms and conditions which applied before the dismissal.
Frequently Asked Questions about Unfair Dismissal
Q: What is genuine redundancy?
A: Genuine redundancy is where an employee’s job is no longer required to be performed by anyone.
Q: What is the Small Business Fair Dismissal Code?
A: Your employer will be able to successfully defend your unfair dismissal claim if it is a small business (with fewer than 15 employees) and can demonstrate that it dismissed you in accordance with the “Small Business Fair Dismissal Code”. If you are a small business employee and your employer cannot demonstrate that it complied with the Code, then the FWC will go on to consider whether or not the dismissal was harsh, unjust or unreasonable.
Q: What happens when I apply for unfair dismissal?
A: Once you apply, your employer will be told about your application. This will give your employer an opportunity to respond to your application. The Commission will then hold a conciliation session in the hope that you and your employer are able to agree on a resolution to the claim.