Know your rights: Unfair dismissal
If an employee has been unfairly dismissed from their regular employment, they may be eligible to make a claim with the Fair Work Commission (FWC) or Industrial Relations Commission (IRC) for unfair dismissal. An unfair dismissal claim may assist the employee to receive compensation or reinstatement of their employment. The relevant commission will consider whether the dismissal was harsh, unjust or unreasonable. This occurs if there were no valid reasons for the dismissal, the employee was not informed of the reasons for their dismissal, or the employee was dismissed for poor performance without any warning that the employee’s performance was unsatisfactory.
When can an employee be dismissed?
An employer is free to terminate employment of an employee when there is a valid reason for the dismissal. The reason must be justified and free of prejudice.
Reasons may include:
- poor performance;
- unsatisfactory conduct;
- serious misconduct;
- changes to the operational requirements of the business; or
- employee’s position becomes redundant in response to business downturn caused by the Coronavirus outbreak.
An employee may be dismissed without notice if they engage in serious misconduct. This includes fraud, theft, violence and other criminal behaviour.
When can’t an employee be dismissed?
An employee cannot be dismissed if they are:
- absent from work due to illness or injury;
- absent from work on parental leave; or
- made a complaint against the employer
What law is relevant?
The Fair Work Act 2009 (Cth) relates to private sector and Commonwealth Government employees in Australia.
The Industrial Relations Act 1996 (NSW) relates to public sector employees (i.e. those employed by the local or State government).
Both sets of legislation protect employees from harsh, unreasonable or unjust dismissals.
What are appropriate forms of dismissal?
An employer should notify its employee face-to-face, and formally with a written confirmation.
The FWC held in the 2019 case of Kurt Wallace v AFS Security 24/7 Pty Ltd 1622 that
“the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.”
It is not appropriate to dismiss an employee by text or email.
A small business, which is defined in the Fair Work Act 2009 (Cth) as a business with fewer than 15 employees, must follow the Small Business Dismissal Code.
Can I make a claim for unfair dismissal?
You may make a claim in NSW within 21 days of termination taking effect.
You may not be eligible to make a claim if you:
- have been employed for less than 6 months (or 12 months if the employer has less than 15 employees);
- were serving a period of probation at the time of dismissal;
- were an independent contractor or labour hire employee;
- were a seasonal employee or employed for a specific period of time; or
- were made redundant.
Please contact a member of the Cheney Suthers team if you would like any further information relating to employment law. If you have been dismissed, we suggest you visit the Fair Work or Industrial Relations website.