Dismissal

Generally speaking, dismissal occurs when your employer wants you to stop work. This could be for any number of reasons, but usually fall into one of five categories – redundancy, general dismissal, summary dismissal, unfair dismissal or unlawful termination.

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.

Redundancy

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.

General dismissal

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.

Summary dismissal

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

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.

Unlawful termination

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.

Differences between states

Northern Territory

If you are concerned about the circumstances of your job loss, you should seek legal advice. There are very strict timelines that apply for making an unfair dismissal claim, and it is essential that you seek legal advice as soon as possible. For further information you can contact the Central Australian Women’s Legal Service on 08 8952 4055 or the NT Working Women’s Centre on 08 8981 0655 in Darwin, or in Alice Springs on 08 8952 5255.

Western Australia

Unfair Dismissal

National System Employees

If you’re a national system employee, unfair dismissal is where the dismissal was harsh, unjust or unreasonable. You’re probably a national system employee if your employer is a company. If you’re not sure if you’re a national system employee you can call Wageline on 1300 655 266, the Fair Work Infoline on 13 13 94 or the Employment Law Centre on 1300 130 956 or 9227 0111 or visit the website at www.elcwa.org.au

Under the national employment laws, you generally cannot make an unfair dismissal claim 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.

For application forms and further information you should contact the Fair Work Commission. You may also contact the Fair Work Ombudsman for advice and assistance.

State System Employees

If you’re a State system employee, unfair dismissal is where the dismissal is harsh, oppressive or unfair. For the purposes of unfair dismissal, you’re probably a State system employee if your employer is an individual (i.e. a sole trader), a partnership where the partners are individuals, or a not-for-profit organisation that doesn’t charge for any goods or services. If you’re not sure if you’re a State system employee you can call Wageline on 1300 655 266, the Fair Work Infoline on 13 13 94 or the Employment Law Centre on 1300 130 956 or 9227 0111.

Any State system employee can make an unfair dismissal claim. However, if you have worked for less than 3 months or you are still on probation this will be a factor that is taken into account in deciding whether the dismissal was unfair.

For application forms and further information you should contact the WA Industrial Relations Commission.

Under both systems of employment law, if you are eligible to lodge an unfair dismissal claim and your claim is successful, you can be re-instated in your job, and you may be eligible to reasonable compensation for lost wages since your dismissal.

Time limit for unfair dismissal claims

National System Employees

If you work for a national system employer, your unfair dismissal claim with the Fair Work Commission must be lodged within 21 days of being dismissed. This time limit can only be extended in exceptional circumstances, so if you want to make a claim it’s best to do so within the 21 day time limit.

State System Employees

If your employer is a State system employer, you must lodge an application with the Western Australian Industrial Relations Commission within 28 days of being dismissed. This time limit may be extended if it would be unfair not to accept the claim out of time.

Unlawful Termination

National System Employees

National system employees are protected from discrimination and are protected from being treated badly by their employers because they have certain workplace rights, like the right to take sick leave or annual leave. These protections are known as “general protections” under the national employment laws.

For example, your employer must not dismiss you or take any adverse action against you for any of the following reasons:

because of your workplace right (including your right to make a complaint at work)
because of your race, colour, sex, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political status, national extraction or social origin
because of your union rights.

Adverse action includes:

altering your position to your disadvantage
discriminating between you and other employees
reducing your hours or pay.

If your employer dismisses you or takes some other type of adverse action against you for a prohibited reason (like the reasons above), you can lodge a general protections claim with the Fair Work Commission. The Commission will organise a meeting with a Fair Work representative and with your employer to resolve the issue. If the issue remains unresolved after this meeting, it can be referred to a hearing. At the hearing, the court can order a wide range of remedies including reinstatement and compensation.

State System Employees

If you’re a State system employee, you cannot make a general protections claim but your employer is still prohibited from dismissing you for a prohibited reason. For example, it is illegal to dismiss someone because they are pregnant or female.

The national employment laws contain a list of prohibited reasons that your employer is not allowed to dismiss you for.

If your employer relies on a prohibited reason to dismiss you, you can lodge an unlawful termination claim with the Fair Work Commission. The Commission will organise a meeting with a Fair Work representative and with your employer to resolve the issue. If the issue remains unresolved after this meeting, it can be referred to a hearing. At the hearing the court can order a wide range of remedies including reinstatement and compensation.

The Fair Work Commission has further information on general protections and unlawful termination claims. You may also contact the Fair Work Ombudsman for advice and assistance.

Time limits for general protection claims and unlawful termination

General protections and unlawful termination claims must be lodged with the Fair Work Commission within 21 days after your dismissal. This time limit can only be extended in exceptional circumstances, so if you want to make a claim, it’s best to do so within the 21 day time limit.

If you have not been dismissed but your employer has taken some other type of prohibited adverse action against you, you have 6 years to lodge a general protections claim.

NSW

If you are a state government or local council employee you may also have unfair dismissal rights under state law. You can apply to the NSW Industrial Relations Commission.

There is 21 day time limit to lodge a claim from the date of dismissal.

Victoria

If you are concerned about the circumstances of your job loss, you should seek legal advice. There may be time limits for making a complaint, so make sure you get onto this straight away. For further information and referrals you can contact the following: