There are rules that govern how someone may be dismissed fairly. Dismissals usually occur as a result of a redundancy, poor work performance, or severe misconduct.
The Fair Work Ombudsman has further helpful information on redundancy and dismissal.
FYI – If you are dismissed from your job, you are still entitled to ask your employer for a reference.
If your employer no longer has money to pay for your position, or the work that you are employed to do no longer exists and there is no other suitable position available within the workplace for you to be transferred to, you can be dismissed. This is called a redundancy. You may be entitled to payment for notice of termination (if you are told to leave work straight away) and/or redundancy pay in some circumstances.
Voluntary redundancy packages are offered where workplaces need to reduce their workforce. Depending on the circumstances you may be offered an amount of money to compensate you for electing to participate in a voluntary redundancy scheme. You need to consider the impact of accepting a redundancy and being unemployed.
Involuntary redundancies occur where an employer has no other option but to dismiss employees due to limited finances and viability of either one position within the company, or the entire company.
If you don’t attend work on time, if you leave work early, or if you are rude to customers or your manager, or you don’t do your work as directed, your employer can dismiss you.
Your employer has the ability to dismiss you, as long as they follow proper procedures and provide you with sufficient notice. They should provide you with a warning, preferably in writing, outlining what their concerns are and provide you with a chance to rectify the problem before dismissing you. This may also require the employer to provide you with additional training. If the situation doesn’t improve you may be dismissed.
You may be entitled to payment for notice of termination (if you are told to leave work straight away), and any remaining annual leave entitlements should be paid out to you on your final pay.
An employer can dismiss you on the spot if they believe, on reasonable grounds, that you have committed serious misconduct such as theft or violence, or if you wilfully or deliberately behave in a way that causes yourself or another person to be unsafe or at risk (this includes being intoxicated at work – the use of alcohol and drugs, other than prescribed medication), or if your behaviour damages the reputation of your employer. If you are dismissed immediately for one of these reasons it is called a summary dismissal.
You are not entitled to notice of termination, but any remaining annual leave entitlements should be paid out to you on your final pay.
Unfair dismissal is where the dismissal was harsh, unjust or unreasonable. This may happen if your employer does not have a valid reason for your dismissal (such as your conduct or your performance), or if you don’t get a chance to tell your employer your side of the story.
The test for an unfair dismissal is that the dismissal is ‘harsh, unjust or unreasonable’ having regard to your conduct and your employer’s conduct and business needs.
You generally cannot claim unfair dismissal if you are a casual employee (some exceptions apply) or within the first 12 months of your employment if your employer is a small business (less than 15 employees) or within the first 6 months of your employment if your employer has 15 or more employees.
If you are eligible to lodge an unfair dismissal claim and your claim is successful, you can be re-instated to your job, and you may be eligible for reasonable compensation for lost wages since your dismissal.
For application forms and further information you should contact the Fair Work Commission.
TIME LIMIT FOR UNFAIR DISMISSAL CLAIMS
Your application with the Fair Work Commission must be lodged within 21 days of being dismissed.
General Protections are provisions in the Fair Work legislation that aim to provide specific workplace rights to employees and to protect employees from workplace discrimination. It’s unlawful for an employer to dismiss an employee for any number of reasons which may go against an employee’s General Protections, such as:
- a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (Some exceptions apply, such as where it’s based on the necessary requirements of the job).
- temporary absence from work because of illness or injury
- trade union membership or non-membership
- being absent from work during maternity leave or other parental leave
- filing a complaint, or participating in proceedings against an employer.
If your employer relies on an unlawful reason to dismiss you, you can lodge an unlawful termination claim with the Fair Work Commission or the Fair Work Ombudsman. It is best to seek advice before making a claim.
TIME LIMITS FOR UNLAWFUL TERMINATION
Your application with the Fair Work Commission must be lodged within 21 days after your dismissal.