News headlines declaring “ABC radio presenter Antoinette Lattouf sacked” over her personal social media posts, provide an opportunity to discuss employment laws and the rules surrounding unfair dismissal in Australia. In this article, New South Lawyers’ employment lawyers delve into the nuances of Unfair Dismissal in Australia according to national employment law, shedding light on what it entails, who it protects, and the steps involved in addressing such claims.

What constitutes Unfair Dismissal in Australia?

In Australia, the employment relationship is governed by a range of laws and regulations designed to protect both employers and employees. One critical area that ensures fairness and justice in the workplace is the concept of Unfair Dismissal. 

According to the Fair Work Act 2009, an employee has been unfairly dismissed if the Fair Work Commission is satisfied that:

  • The person has been dismissed; and
  • The dismissal was harsh, unjust, or unreasonable; and
  • The dismissal was not confident with the Small Business Fair Dismissal Code; and
  • The dismissal was not a case of genuine redundancy, as defined by the Act.

It's essential to understand that not every termination of employment will be considered unfair. Provided that the conduct is not deemed harsh, unjust or unreasonable, employers have the right to dismiss employees for valid reasons, including poor performance, misconduct, or genuine operational reasons. However, the process leading to dismissal must be fair, transparent, and compliant with the law.

Protection for employees against Unfair Dismissal in Australia

The Unfair Dismissal laws in Australia provide a safety net for most employees. However, there are specific criteria to qualify for protection:

  • The employee must have completed a minimum employment period, which varies based on the size of the employer (either six months or 12 months).
  • Some categories of employees, such as high-income earners or employees of small businesses (those with fewer than 15 employees), may have different eligibility criteria.

It's crucial for employees to understand their rights and eligibility concerning unfair dismissal claims to ensure they can seek appropriate recourse if necessary.

Genuine redundancy vs. Unfair Dismissal in Australia

A genuine redundancy occurs when an employer no longer requires the employee's job to be done by anyone due to changes in operational requirements. In such cases:

  • The dismissal may be considered genuine if the employer has complied with consultation obligations, provided adequate notice, and explored alternative redeployment options within the business or an associated entity; and
  • Employees made redundant, depending on their tenure and award or agreement, may be entitled to redundancy pay.

On the other hand, if an employer disguises a termination as redundancy without genuine operational reasons, it could be deemed an Unfair Dismissal. The distinction between genuine redundancy and Unfair Dismissal in Australia is crucial, emphasising the importance of adhering to legal and procedural requirements.

The role of the Fair Work Commission 

The Fair Work Commission plays a pivotal role in addressing Unfair Dismissal claims. Employees who believe they've been unfairly dismissed can lodge an application with the Commission within 21 days of their dismissal taking effect. Upon receiving a claim:

  • The Commission will assess whether the dismissal was unfair based on the criteria outlined in the Fair Work Act.
  • Mediation may be offered as an initial step to resolve the dispute between the parties.
  • If mediation fails or is not pursued, the Commission will conduct a formal hearing, where evidence is presented, and a decision is made regarding the dismissal.

Employers must be prepared to justify their actions, demonstrating that the dismissal was fair, reasonable, and compliant with relevant legal obligations.

Remedies and Outcomes

If the Fair Work Commission determines that an employee was unfairly dismissed, several remedies may be applied, including:

  • Reinstatement: The employee is returned to their former position as if the dismissal never occurred.
  • Compensation: Monetary compensation may be awarded to the employee, reflecting lost wages and other associated costs.
  • Other orders: The Commission may issue various orders to remedy the Unfair Dismissal, such as requiring the employer to provide a formal apology or undertake specific actions to prevent future unfair dismissals.

Ultimately, laws against Unfair Dismissal in Australia have been implemented to foster a workplace culture grounded in fairness, transparency, and compliance is paramount, reflecting Australia's commitment to upholding the rights and dignity of all workers.

Have you or your employees faced challenges related to Unfair Dismissal in Australia? Whether you're an employee seeking justice or an employer aiming to navigate the complexities of employment law, reach out in confidence to one of New South Lawyers’ experienced Employment Lawyers today.

New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Employment Law Team today.