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).
When is a person dismissed?
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 is demoted, unless it involves a significant reduction in the employee’s duties or remuneration;
a person is employed under a contract and the contract comes to an end;
a person had a training arrangement with the employer which specified the employment was limited to the duration of the training arrangement and whose employment ends at the end of the training arrangement.
What is unfair dismissal?
A person has been unfairly dismissed if the dismissal was:
harsh, unjust or unreasonable; and
not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business); and
What is the minimum period of employment under the FWA?
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’.
‘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.
When is a person excluded from relying on unfair dismissal laws?
A person may be excluded from relying on unfair dismissal laws where:
the person is not an employee because there is no contract of employment, either written or oral (eg: an independent contractor);
the person has entered into a work contract with a labour hire agency (eg: a nurse who is working for a nursing agency or a security guard working for a security agency);
a person is on ‘vocational placement’ (where the person is serving a placement with an employer for which no entitlement to remuneration arises);
What is the time period for making an application for unfair dismissal?
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.
What about State Government and Local Council employees?
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:
whether the employee was notified of the reason for the dismissal; and
whether the dismissal relates to the operational requirements of the employer’s undertaking, establishment or service or the employee’s conduct, capacity or performance; and
if the dismissal relates to the employee’s conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance.
A state government of local council employee cannot pursue a claim for unfair dismissal if:
their probation period has not been served (3 months unless otherwise provided);
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.