What is unlawful termination or dismissal?
It is unlawful for an employer to terminate an employee's employment for invalid reasons. This is called unlawful termination or dismissal. Unlawful termination provisions apply to all employees in Australia. Employees who are excluded from making unfair dismissal claims are not excluded from making unlawful dismissal claims.
Invalid reasons are:
- temporary absence due to illness or injury
- temporary and reasonable absence due to volunteer work for Disaster Emergency
- membership of a union
- non-membership of a union
- seeking office as or acting as a representative of the employees
- absence during maternity leave or parental leave
- the filing of a complaint against an employer involving alleged violation of laws.
Employees, under the federal system have 21 days to apply to Fair Work Commission (FWC) for unlawful termination.
State and federal laws cover unfair dismissal. You should get legal advice if you believe you have been unfairly dismissed.
What is unfair dismissal under federal law?
Complaints about unfair dismissal under federal law should be made to the Fair Work Commission.
Under federal law, an employee's dismissal from employment is unfair if it is harsh, unjust or unreasonable. For harsh, unjust or unreasonable dismissals, several issues are considered, these include whether:
- there was a valid reason related to the person's capacity or conduct
- they were informed of that reason
- they were given an opportunity to respond
You are dismissed if your employer terminates your employment or you were forced to resign because of conduct engaged in by your employer.
Who is covered by federal unfair dismissal laws?
If your employment is covered by federal law the following exclusions apply.
If you work for a small business with less than 15 employees, you must have worked for 12 months before you can apply for unfair dismissal. If the employer complied with the small business fair dismissal code then the dismissal is not considered unfair.
If you work in a business with 15 or more full time employees, you must have worked for the business for at least 6 months to be covered by the unfair dismissal laws. If you earn more than the high income threshold (currently $133,000) and are not covered by a modern award or enterprise agreement, you are not covered by the unfair dismissal laws.
When you continue to be employed in a job and the business is sold or transferred to another non associated entity of the old business the new employer may inform you in writing before the new employment starts that a period of service with the old employer would not be recognised as continuous service for the purposes of unfair dismissal
If you are a casual employee you are not eligible for unfair dismissal unless you were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.
You are not eligible to apply for unfair dismissal if you were employed for a specified time or a specified season or you were on a training arrangement for a specified period of time and the employment terminated at the end of the time agreed.
If you were demoted but the demotion does not involve a significant reduction in wages or duties and you remain employed by the employer that reduced the duties then you are not eligible to apply for unfair dismissal.
You are not eligible to apply for unfair dismissal if your dismissal was a case of genuine redundancy. This means the job no longer needed to be performed by anyone because of operational requirements in business and the employer has consulted about the redundancy as required by any enterprise agreement or modern award.
It is not a case of genuine redundancy if it was reasonable in all the circumstances for the person to be redeployed with the employer's enterprise or the enterprise of an associated entity of the employer.
How do I lodge an unfair dismissal claim under federal law? Is there a time limit?
An application for unfair dismissal must be lodged with Fair Work Commission within 21 days after termination of employment. The FWC can extend this period.
The FWC may dismiss an application for unfair dismissal if it is clear that:
- the employee is excluded by the legislation from bringing an unfair dismissal claim
- the case was a case of genuine redundancy
- the dismissal was consistent with the small business fair dismissal code
- the employee has not completed the necessary six month qualifying period, or
- the application was not made within 21 days of termination and does not warrant an extension of that time limit.
The FWC may also dismiss an application for unfair dismissal on application by the employer if it is satisfied that the applicant has unreasonably:
- failed to attend a conference or hearing conducted by the FWC in relation to the application
- failed to comply with a direction or order of the FWC relating to the application, or
- failed to discontinue the application after a settlement agreement has been reached.
If the unfair dismissal application is accepted (ie it is not excluded on the grounds listed above), the FWC may decide whether to hold a hearing or a conference. At any time the FWC may decide that a conference should be terminated and a hearing held instead. After the conference the FWC decides if the matter should go on further to a hearing.
Leave to appeal from a decision made at the hearing may only be granted if the FWC considers it in the public interest, ie it is an issue that has relevance to larger numbers of people and other sectors of the community and not just your situation as an individual. If you are considering an appeal you should get legal advice.
The FWC must give permission for lawyers to be present at proceedings.
Who pays costs?
In a matter before the Fair Work Commission, each party usually pays their own costs. In some circumstances the FWC may make an order for one party to pay the costs incurred by the other party. You should get legal advice.
What is unfair dismissal under state law?
Complaints about unfair dismissal under state law should be made to the Queensland Industrial Relations Commission.
Under state law, an employee’s dismissal from employment is unfair if it is for an invalid reason or if it is harsh, unjust or unreasonable. To determine whether a dismissal is unfair, several issues are considered, these include:
- whether the employee was notified for the reasons for dismissal
- whether the dismissal is related to the operational requirements of the employer
- whether the dismissal is related to the employee’s conduct, capacity or performance, and
- any other matters the Queensland Industrial Relations Commission considers relevant.
If the dismissal relates to the employee’s conduct, capacity or performance, the commission must also consider whether the employee has been issued a warning and whether they have had the opportunity to respond.
Who is covered by state unfair dismissal laws?
Apprentices and trainees who are subject to Queensland law are excluded from making an unfair dismissal claim.
Some other employees subject to Queensland law are excluded from making an unfair dismissal claim, unless the dismissal was for an invalid reason. They include:
- probationary employees
- short-term casuals (casual employees who have not been engaged on a regular and systematic basis, have not been engaged for several periods of employment of a least one year and does not have a reasonable expectation of further employment with the employer)
- contract employees and
- those earning more than $118,100 who are not employed under an award or an agreement and are not public service officers employed on tenure under the Public Service Act 1996.
How do I lodge an unfair dismissal claim under state law?
You may lodge an application for unfair dismissal with the Queensland Industrial Relations Commission (QIRC) within 21 days after termination of employment (but the QIRC can extend this period).
Before a formal hearing is arranged, the Commission will organise a conciliation conference between you and your employer to try and settle the matter. The conference is important as it gives you a chance to come to an agreement. You and your employer get to have your say in a controlled and impartial atmosphere.
Conferences can eliminate the need for a formal hearing. In Queensland, the majority of unfair dismissal cases do not go any further than the conference stage.
If the Commissioner believes that the matter cannot be settled by conciliation or that the employee is excluded from the unfair dismissal provisions of the Act they must:
- issue a written statement explaining why they believe the matter cannot be settled or that the employee is excluded; and
- inform the parties of the merits of the application and of the consequences of further proceedings (eg costs may be awarded against either party).
The Commissioner may also recommend that the application be discontinued.
If you take no further action, your application will automatically lapse six months after the Commissioner takes the above actions. It is only when attempts at conciliation fail that the Commission, being advised by the employee that they wish the matter to go to hearing, hears the case and makes a decision.
If I have been unfairly dismissed, what remedies can I get?
The remedies for unfair dismissal may include reinstatement, back pay, or if reinstatement is not appropriate, then an amount of money to a maximum of six months wages.
The circumstances of a dismissal may also give you rights under other laws such as discrimination law. You will need legal advice about the best claim to make in your circumstances. This is very important, because if you make one claim, you may lose your rights to make a different claim which could have been better for you.
Who can I contact if I may have been unlawfully or unfairly dismissed?
If I am dismissed should I get a separation certificate?
If you are dismissed by an employer you should obtain a separation certificate just in case you want to claim benefits from Centrelink. You should also get a certificate of service detailing your period of service and duties performed.
What if I have a claim for breach of contract or loss of commission?
If your employment contract has been terminated you will need to get legal advice about your options. You may have a claim for damages for breach of contract or for outstanding commission.
If you have a small claim for breach of contract or loss of commission, simplified procedures in the Fair Work division of the Federal Circuit Court can reduce the costs of the legal proceedings. The court follows informal processes including mediation in an effort to resolve the issue in a cost-effective manner. If you have a claim for loss of wages or commission get legal advice.