Employers should be aware that unfair dismissal applications are able to be commenced more easily under the Fair Work Act 2009 (Cth) (‘the Act’). The 100 employee exception under the WorkChoices regime was abolished when the unfair dismissal provisions of the Act came into operation on 1 July 2009.

What is unfair dismissal?

Unfair dismissal applications are made to Fair Work Australia and must be made within 14 days of the dismissal coming into effect. An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and Fair Work Australia finds that:

  • the employee was dismissed, and
  • the dismissal was harsh, unjust or unreasonable, and
  • the dismissal was not a case of genuine redundancy, and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.

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

Who is eligible to make an application?

To be eligible to apply an employee must, amongst other things, have:

  • completed a minimum employment period of at least six months (one year in the case of a small business employee), and
  • be covered by an award or agreement if they earn more than $118,100 a year.

Employers must be aware that they are obliged under the Act to allow employees to have a support person present at any discussion relating to dismissal.

What is harsh, unjust or unreasonable?

The Act sets out a number of factors that Fair Work Australia may consider when deciding whether a dismissal was harsh, unjust or unreasonable.

It is important that an employer before dismissing an employee for performance issues bring those issues to the attention of the employee and afford the employee an opportunity to address the concerns well prior to any dismissal. In addition to having a meeting with the employee it would be prudent to document in writing the performance issues and provide a copy to the employee. Similarly any failure of the employee to address the performance concerns should be documented so that a contemporaneous record of events is created that can be relied upon in the future if required.

The unfair dismissal application process

Once an employee’s unfair dismissal application has been lodged with Fair Work Australia the matter will be set down for conciliation and the employer will be required to file their response to the application prior to the date for conciliation.

Conciliation is an informal, private and generally confidential process where a Fair Work Australia conciliator assists employees and employers to resolve an unfair dismissal application by agreement.

If the unfair dismissal application is not withdrawn or does not settle at or before the conciliation, then the matter will be set down for a hearing at Fair Work Australia.

An employer can object to an unfair dismissal application on the basis:

  • the applicant was not unfairly dismissed;
  • the application was lodged with FWA outside of the prescribed time limits;
  • the applicant is not covered by the unfair dismissal laws or is not eligible to make an application;
  • the application is frivolous, vexatious or has no reasonable prospects of success.

If Fair Work Australia finds that a person has been unfairly dismissed, it may order reinstatement. It may order payment of compensation only if it considers that reinstatement is inappropriate.

Conclusion

Employers should be aware of the unfair dismissal process under the Act to try and minimise the risk of an unfair dismissal application being brought against them by an employee.

Amelita Hensman
Pointon Partners
Level 2, 640 Bourke Street
Melbourne, Victoria 3000
Phone: (03) 96428668