Dismissal
Only employees covered by the national workplace relations system are covered by the unfair dismissal laws. (Other employees may have access to remedies under State legislation) The national workplace relations system covers those who are:
- employed by a constitutional corporation (including Pty Ltd companies)
- employed in Victoria, the Northern Territory or ACT
- employed by the Commonwealth or a Commonwealth authority
- 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?
The laws do not cover:
- contractors
- employees who resign and were not forced to do so by the conduct of their employer
- those employed under a contract 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
- 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.
Small business employees
The Fair Work Act 2009 provides for the Minister to declare a Small Business Fair Dismissal Code. From 1 July 2009 the code will apply to small business employers—defined as employers with less than 15 full-time equivalent employees. A person is not unfairly dismissed if the dismissal:
- is by a ‘small business employer’ as defined, and
- is consistent with the code, or
- involves an employee who has not completed the minimum employment period of one year.
Employees who are not small business employees
An employee, who is not a small business employee, is not eligible to make an unfair dismissal application if they have not completed a minimum of six months employment.
Dismissals before 1 July 2009
Unfair dismissal applications involving a dismissal which took place before 1 July 2009 are covered by the provisions of the Workplace Relations Act 2009.
Types of dismissal
Fair Work Australia deals with two main types of dismissal applications:
- unfair dismissal
- dismissal where there has been a breach of the ‘general protections’.
In general, an employee cannot pursue more than one type of dismissal application at the same time. This section deals with unfair dismissal. The other type of dismissal application follows the processes outlined in the Dispute resolution section.
What is unfair dismissal?
A person has been unfairly dismissed if:
- 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 ‘small business’ is a business that employs less than 15 full-time equivalent employees.
Who can make an unfair dismissal application?
To make an unfair dismissal application an employee must be:
- covered by the national workplace relations system, and
- eligible to apply.
To be eligible to apply an employee must, amongst other things, have:
- completed a minimum employment period of at least six months (one year in the case of a small business employee), and
- be covered by an award or agreement if they earn more than $108,300 a year.
