Dismissals and Terminations

Unfair and Unlawful Dismissal

If a member is dismissed in a manner which is unfair, the Union may have recourse to investigate and possibly take action against the employer.

The Fair Work Act 2009 accords employees certain rights with respect to termination of employment. These rights extend to full-time, part-time and casual (subject to certain limitations) employees.

If there are grounds to believe you have been unfairly dismissed, it is possible to lodge what is called an ‘application for unfair dismissal remedy’, to seek reinstatement or compensation from your employer.

Before lodging an application with the Fair Work Commission it is important to understand that only a Member of the Commission can decide whether your dismissal was unfair.

Am I eligible?

An employee is eligible to make an application for unfair dismissal if they have completed the minimum employment period of:

• one year—where the employer employs fewer than 15 employees (a small business employer)
• six months—where the employer employs 15 or more employees.

A small business is a business that employs fewer than 15 employees.

In addition, if the person earns more than $136,700 per year, at least one of the following must apply:

• an award covers the person
• an enterprise agreement applies to the person.

The process

As a member of the SDA, if deemed there are grounds that the dismissal was unfair, we can assist in preparing your application. The application needs to be lodged within 21 days of a dismissal. N.B. If you have been dismissed you need to contact the SDA as soon as possible to enable investigation, and time for the application to be drafted and lodged.

Once completed, the application will be lodged with the Fair Work Commission and this is the beginning of a formal legal process. Once the application is received the Commission will forward a copy to your employer and ask them for a response.

Most unfair dismissal cases are resolved at a conciliation, which is a voluntary and informal telephone meeting between yourself, your employer, and a Fair Work Commission Conciliator, held not long after your application is lodged and a response has been received from your employer. As a member of the SDA we will represent you at the conciliation and put your case forward.

If your case can’t be resolved at conciliation and there are strong grounds that the dismissal was unfair then it may proceed to a conference or hearing before a Member of the Commission. This is when a decision will be made about whether your dismissal was unfair.

Was it harsh, unjust or unreasonable?

Only a Member of the Commission can decide whether your dismissal was unfair. In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

• whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees), and
• whether the person was notified of that reason, and
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal, and
• if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal, and
• the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
• any other matters that the Commission considers relevant.

How long do I have to make an unfair dismissal application?

An unfair dismissal remedy application must be lodged within 21 days of the dismissal coming into effect. The Commission may accept a late application, but only in exceptional circumstances.

Key steps

The key steps in the unfair dismissal application process are:

1. employee lodges application
2. the application is checked to ensure it is complete and valid
3. employer is notified of the application
4. the Commission conciliates the application to try to help the parties resolve it among themselves
5. an unresolved application is determined by the Commission following a conference or hearing.

What is conciliation?

Conciliation is an informal, private and generally confidential process where a Commission conciliator helps employees and employers to resolve an unfair dismissal application by agreement.

The conciliator is independent and does not take sides, but works to bring the parties to an agreed resolution.

As a member of the SDA we can represent you at the conciliation and put your case forward.

The style of each conciliator may vary but, in general, a conciliation will include the following steps:

• the conciliator explains their role and the manner in which the conciliation is to be run
• each side briefly outlines their story including what happened, any relevant facts and what they want
• the conciliator may allow or ask questions
• the circumstances, and any issues arising, are discussed. The conciliator may talk separately to the parties
• the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and helping the parties in drafting an agreement in writing.

Contact the SDA

If you have been dismissed by your employer or believe you may be dismissed please contact the SDA as soon as possible for advice and assistance.

Termination Payments

Termination by the Employer

Misconduct (justifying instant dismissal)

An employee is to be paid:

•  all wages (up to the time of dismissal),
  •    all outstanding annual leave for completed years of service,
  •    all outstanding pro rata annual leave for part years of service,
  •    all outstanding long service leave if the employee has completed ten years service with the company.

Termination

The industrial law associated with termination of employment is detailed and complex. The information set out in this Section is general in nature, and you must consult your Enterprise Agreement and/or Organiser before giving advice to members.

The rights and obligations of employers and employees upon termination of employment depend upon a number of factors, including:

the contract of employment,

the particular Enterprise Agreement, and any relevant legislation,

whether the employee or the employer terminates the employment,

the reason for the termination, and

the length of notice given, service and age of the employee.

The termination payment due to an employee may include notice, outstanding leave entitlements and/or severance depending on the circumstances.

Period of Notice - Permanant Employees

Employer Termination

The Fair Work Act 2009 requires an employer to give the following amount of notice of termination to full-time and part-time employees.

Employees period of continuous service with the employer at the end of the day the notice is given:

The amount of notice is increased by one week if the employee:

is over 45 years old, and

has completed at least two years of continuous service with the employer.

If an employer decides to pay the employee instead of giving the correct amount of notice, the amount of pay must be equal to or exceed the amount the employee would have received had they continued to work. This does not apply if the employee is terminated for serious and wilful misconduct.

Employee Termination

Notice by full-time and part-time employees is generally the same as that required by the employer. However, it should be noted that a number of Enterprise Agreements and Awards set the maximum notice period for full-time and part-time employees at one week.

Casual Employees

The rights and obligations of employers and employees upon termination of employment depend upon a number of factors, including:

the contract of employment,

the particular Enterprise Agreement, and any relevant legislation,

whether the employee or the employer terminates the employment,

the reason for the termination, and the length of notice given, service and the age of the employee.

The termination payment due to an employee may include notice, outstanding leave entitlements (if any) and/or severance depending on the circumstances.