Australia: What exactly is unfair dismissal from your employment?

Last Updated: 23 January 2017
Article by Mark Cox and Joanne Knoth

Unfair dismissal occurs when an employee's dismissal from employment is harsh, unjust or unreasonable. Those who are unfairly dismissed may be eligible to receive compensation by making an unfair dismissal claim. In a small number of cases they may get an order for reinstatement to their former job.

In Western Australia, unfair dismissal claims can be made under the Fair Work Act 2009 or through the Western Australian Industrial Relations Commission depending on the type of organisation the employee worked for. Common situations where a dismissal may be deemed unfair include:

  • Redundancy that is not genuine (the employer hired someone else in the same role)
  • The employer did not follow correct or fair procedures in effecting the dismissal
  • The employee was terminated as a result of poor performances but was never notified of any issues in the lead up to the termination
  • There was no valid reason for dismissal
  • The employee was not formally notified in writing for the reason of dismissal
  • The employee was not given an opportunity to respond to the reason for dismissal

GENUINE REDUNDANCY

Especially in tough economic times, employees are more frequently dismissed on the grounds of redundancy. If the position was genuinely made redundant, employees cannot make an unfair dismissal claim. . Genuine redundancy means the job (with its bundle of duties) was no longer required to be performed by any one job holder because of operational or structural changes.

Under many awards and enterprise agreements, the employer also has to make reasonable efforts to redeploy you within the business or a related business, and they may also have other steps to comply with during the redundancy process. The law surrounding redundancy is complex, so it is best to seek legal advice if you are unsure about the legality of a redundancy.

OTHER TYPES OF CLAIMS

Sometimes an employee may not be able to make an unfair dismissal claim but are able to make another type of claim, including:

  • Breach of contract claim
  • Unlawful termination claim
  • Discrimination claim
  • General protections/adverse action claim

A claim based on contract depends on proof that some provision of the contract, including implied terms, has been breached, such as where the required notice has not been given. The other claims generally look at whether the reason behind dismissal was unlawful rather than unreasonable. Unlawful reasons for dismissal include:

  • Discrimination (race, colour, sex, age, sexual preference, political opinion, marital status, disability, pregnancy, religion, national extraction or social origin)
  • Absence from work because of maternity leave, parental leave, illness or injury
  • Absence from work because of voluntary emergency service activity
  • Filing a complaint or participating in proceedings against an employer for alleged breaking of regulations or laws
  • Trade union membership or non-membership
  • Having or exercising a workplace right, such as making a complaint or inquiry in relation to their employment.

CONSTRUCTIVE DISMISSAL

A constructive dismissal is when the employee is left with no other choice but to resign due to the actions or conduct of their employer.

Common situations where this could occur include:

  • Giving an employee an ultimatum by telling them that they must either resign or be terminated
  • Failing to provide a safe or healthy working environment
  • Imposing unfair and detrimental measures on the employee
  • Making it very difficult or impossible for the employee to fulfil their role

The employee has to be able to prove that the employer's actions gave them no choice but to resign.

OUTCOMES OF UNFAIR DISMISSAL CLAIMS

Successful unfair dismissal claims result in either reinstatement or compensation, but mostly the latter. The maximum compensation payable is capped at six months of pay and will generally only be awarded in very serious cases.

There are strict time limits for making an unfair dismissal claim. An employee has 21 days from the date of dismissal to make a claim under the national system and 28 days under the state system. If you are an employee who was unfairly or unlawfully dismissed or an employer facing a claim, you should get legal advice immediately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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