Unfair dismissals 101

Presenter: Layla Cachalia

Contents

Do I have unfair dismissal rights?

Jurisdictional hurdles

Elements of a claim

Questions?

Remedies

Do I have unfair dismissal rights?

Claims are brought under:

• Fair Work Act 2009 (Cth) (FW Act) for private sector employees
• Industrial Relations Act 1996 (NSW) (IR Act) for public service/local government employees

Can you bring a claim?

• have completed minimum period of employment – 6 months for most, 12 months where a small business employer; and
• are covered by a modern award, an enterprise agreement applies or earn less than high income threshold (currently $175K)

You may not be able to bring a claim, if you were:

• an independent contractor
• a casual employee (exclusions for regular and systematic employment)
• engaged for a specific period or task

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• Claims must be made within 21 days after dismissal takes effect
• Under FW Act, a person has been unfairly dismissed if the FWC is satisfied that:

      (a)  the person has been dismissed; and

      (b)  the dismissal was harsh, unjust or unreasonable; and

      (c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

      (d)  the dismissal was not a case of genuine redundancy.

• Under IR Act, a dismissal is unfair if it is harsh, unjust or unreasonable.

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Jurisdictional hurdles

• Common jurisdictional hurdles employees trip up on include:
• failure to meet limitation periods
• failure to meet minimum employment period – in respect of casuals, unable to demonstrate regular and systematic employment
• income over high income threshold
• dismissal a genuine redundancy
• dismissal consistent with small business fair dismissal code
• employee was not dismissed

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Elements of a claim�

• Section 387 of FW Act: In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

                     (a)  whether there was a valid reason for the dismissal; and

                     (b)  whether the person was notified of that reason; and

                     (c)  whether the person was given an opportunity to respond to any reason; and

                     (d)  any unreasonable refusal by the employer to allow the person to have a support person present; and

                     (e)  if the dismissal related to unsatisfactory performance by the person—whether the person had been warned; and

                      (f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (h)  any other matters that the FWC considers relevant.

• Note:  Under IR Act – broadly the same but some subtle differences

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Remedies�

• Reinstatement
• reappointing the person to the position in which the person was employed immediately before the dismissal; or
• appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
• if position has been moved to associated entity of the employer, reinstatement to that role
• Orders to maintain continuity of service and restore lost pay
• Compensation
• Capped at 26 weeks pay or half the high income threshold
• Range of factors to be weighed
• Misconduct reduces award
• No compensation for shock, distress or humiliation

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Questions

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