Fair Work Act 2009 (the “FW Act”) is currently Australia’s principal industrial relations statute and governs the employment of most employees in each State and Territory of Australia.
What is unfair dismissal?
If an Australian business has to dismiss an employee, they need to ensure that they have a valid reason. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner or not due to a genuine redundancy.
Who is covered by the unfair dismissal laws in Queensland?
- Those employed by private enterprise in Queensland;
- Those employed by the Commonwealth or a Commonwealth authority; and
- A waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce.
Who is not covered by the unfair dismissal laws in Queensland?
- Those employed by state government in Queensland;
- Those employed by local government in Queensland;
- Employees who resign and were not forced to do so by the conduct of their employer;
- Those employed under a contract of employment for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season;
- Trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement; and
- Employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.
How is unfair dismissal assessed?
In assessing whether the dismissal was harsh, unjust or unreasonable, Fair Work Australia will look at two broader questions:
- Is there a valid reason for the dismissal? (known as substantive fairness)
- Has the process undertaken by the employer leading to the dismissal been fair? (known as procedural fairness).
Applying for unfair dismissal
Employees need to apply to the Fair Work Commission within 21 days after their dismissal takes effect.
Minimum employment period & Small Businesses Exemptions
Employees have to be employed for at least 6 months before they can apply for unfair dismissal. Employees working for a small business have to be employed for at least 12 months before they can apply. Small business is defined as having less than or equal to 15 full time employees.
Employees are required to pay an application fee. This fee may be waived on the grounds that its payment would cause serious hardship.
Should you require any assistance due to an unfair dismissal, please feel free to contact Porta Lawyers.