The Fair Work legislations provide important protections for employees in Australia, including the right to challenge unfair dismissals. Understanding the time limits connected to filing an unfair dismissal claim is crucial to ensuring that your rights are upheld.
Employees who think they may have been unfairly dismissed should be aware of their eligibility and the process.
Key Takeaways
- Eligibility to make a claim for unfair dismissal requires a person to have been employed by the employer for the minimum employment period.
- It is crucial for employees who believe they have been unfairly dismissed to act promptly and initiate the process within the 21-day window.
- The Fair Work Commission has the power to determine whether exceptional circumstances were preventing an application from being made in a timely manner.
- Employers, particularly small businesses, should be aware of the requirements of dismissing employees, and follow the fair work dismissal code process to avoid unfair dismissal claims.
Fair Work Act
The Fair Work Act 2009 (Cth) (FWA) and Fair Work Regulations 2009 (Cth) (Regulations) are the primary legislation in Australia that governs employment matters, and workplace relations, and sets out the rights and protections of employees. A useful and important aspect of the FWA relates to unfair dismissals and provides employees guidance on how to deal with unfair termination. It is important and often unknown to many that there are time limits for filing an unfair dismissal claim under the FWA.
What is Unfair Dismissal under the Fair Work Act
Part 3.2 of the FWA sets out how to deal with Unfair Dismissal claims for those eligible under the FWA Act. Unfair Dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. Where a protected person believes they have been unfairly dismissed, they may apply to the Fair Work Commission (FWC) for relief.
To find that an employee is unfairly dismissed, the FWC must be satisfied that:
- The person has been dismissed; and
- The dismissal was harsh, unjust or unreasonable; and
- The dismissal was not consistent with the Small Business Fair Dismissal Code; and
- The dismissal was not a case of genuine redundancy.
The meaning of dismissal under the FWA is provided under section 386, being:
- the person’s employment with his or her employer has been terminated on the employer’s initiative; or
- The person has resigned from his or her employment but was forced to do so because of conduct engaged in by his or her employer.
Who is protected?
Eligible persons under the FWA are protected from unfair dismissal where:
- The person has been employed by their employer for at least the ‘minimum employment period’
- being 6 months where the employer is not a small business; and
- One year where the employer is a small business.
- Where one or more of the following apply:
- The individual is covered by a modern award;
- The individual is covered by an enterprise agreement;
- the individual’s income is less than the high-income threshold – as of 1 July 2023, the high-income threshold is $167,000.00.
Factors to be considered by FWC
In considering whether a person was dismissed unfairly, the FWC must determine if a dismissal was harsh, unjust or unreasonable, and would consider whether:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct; 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
- where the dismissal relates to unsatisfactory performance by the person- whether the person had been warned about their performance before the dismissal; and
- the degree to which the size of the employer’s enterprise would be likely to impact the procedures followed in effecting the dismissal; and
- the degree to which the absence of a dedicated human resource management specialist/expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters the FWC considers relevant.
Time Limitations
There are strict time limits on making an unfair dismissal claim under the FWA. An individual has 21 calendar days from the date of their dismissal to lodge a claim with the FWC. A time limit cannot be extended unless exceptional circumstances are involved.
What are some ‘exceptional circumstances?
These are generally matters outside the ordinary course, uncommon or special. The FWC consider the following when determining if ‘exceptional circumstances’:
- the reason for the delay; and
- whether the person first became aware of the dismissal after it had taken effect; and
- any action taken by the person to dispute the dismissal; and
- prejudice to the employer; and
- the merits of the application; and
- fairness, as between the person and other persons in a similar position.
Some examples of these circumstances are severe illness, incapacitation, or other out of the ordinary events preventing an ex-employee from filing an application within 21 days.
For Small Businesses
Small businesses have different rules for dismissal, set out in the Small Business Fair Dismissal Code (the Code). A small business is one with fewer than 15 employees. The Code should be followed by small businesses, as it is a protection against unfair dismissal claims, if followed.
The FWC will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this.
Remedies
The FWC may do any of the following to remedy an unfair dismissal:
- order a person’s reinstatement
- order to restore lost pay
- order payment of compensation to the person dismissed
It is important to note that the FWC will often first arrange a mediation or conciliation between the employer and employer to discuss the issues and often assist in meeting a mutual remedy for both the employer and employee.
Contact Us
Need advice on your rights and available protections under employment law, contact us today on (02) 9189 5288
Craig Higginbotham and Nicole Sarraf
17 December 2024
