A person who has been dismissed or terminated by their employer or who has been forced to resign (constructive dismissal), has a number of options available to them to protect their rights and seek remedies for damage suffered. The Fair Work Act 2009 (‘FWA’) and the Industrial Relations Act 2016 (‘IRA’) contain similar provisions in relation to unfair dismissal laws. In Queensland, the FWA covers national system employees and employers (that is, employees and employers in the private sector).
Dismissal occurs where an employer has terminated the employee’s employment at the employer’s initiative or the employee was forced to resign because of the conduct engaged in by the employer.
Dismissal generally does not occur where:
A person has been unfairly dismissed if the dismissal was:
The following factors must be taken into account when determining whether dismissal is ‘harsh’, ‘unjust’ or ‘unreasonable’:
A small business is one that has less than 15 employees. This includes all employees (full-time and part-time) and casual employees that work on a regular and systematic basis.
A small business employer is subject to different rules regarding dismissal of employees. The Small Business Fair Dismissal Code provides protection for small businesses if they abide by the Code.
A person is eligible to make an application to the Fair Work Commission for unfair dismissal if:
A person is only able to make an application for unfair dismissal if, at the time of dismissal, they have completed the minimum period of employment. This is 6 months or 12 months if the employer is a ‘small business’.
The high-income threshold is adjusted annually on 1 July each year. It relates to the annual rate of ‘earnings’ by an employee.
‘Earnings’ include wages, other amounts paid on an employee’s behalf or as the employee directs and the agreed money value of non-monetary benefits.
There is a broad range of benefits that may not constitute ‘earnings’ depending on the circumstances, such as payments which cannot be determined in advance (eg: commissions and overtime in certain circumstances), reimbursements, compulsory contributions to a superannuation fund and fringe benefit tax.
A person may be excluded from relying on unfair dismissal laws where:
The time limit for applying for an unfair dismissal claim is 21 days after the dismissal takes effect or any further time the Commission allows if there are exceptional circumstances. It is important to lodge your claim within the 21 day timeframe as there is no guarantee that the FWC will allow an extension of time.
Employees and employers of the Queensland Government, as well as local councils are generally covered by the IRA and matters will be heard in the Queensland Industrial Relations Commission (‘QIRC’).
Under the IRA, a dismissal will be unfair if it is harsh, unjust or unreasonable.
When deciding whether a dismissal is harsh, unjust or unreasonable, the QIRC must consider:
A state government of local council employee cannot pursue a claim for unfair dismissal if:
The time limit for applying for an unfair dismissal claim is 21 days after the dismissal takes effect or any further time the Commission allows if there are exceptional circumstances.
Claims for ‘unfair dismissal’ can be complex and factually difficult depending on the circumstances of the matter. Immediate action is crucial if you believe you have a claim for unfair dismissal to ensure your claim is lodged within the 21-day time limit. Should you wish to pursue a claim for unfair dismissal you should seek legal advice from a Gilshenan & Luton employment lawyer as soon as possible after your dismissal.
Employment Lawyers Brisbane