Unfair Dismissal

    The new unfair dismissal regime:
  • will be accessible to workers who have been employed by a small business for at least 12 months, or employed by a large employer for at least 6 months, provided they earn less than $100,000;
  • establishes a Fair Dismissal Code for small businesses;
  • contains limited rights of appeal and is designed to be less legalistic.

The Bill has maintained the same features contained in the current Act regarding what is considered unfair dismissal, however a ‘genuine redundancy’ provision in the Bill has replaced the ‘operational reasons’ exemption in the Act.

A person is unfairly dismissed if FWA is satisfied that a person has been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Code and was not a case of genuine redundancy.

When considering whether a dismissal has been harsh, unjust or unreasonable, the Bill provides an additional factor to consider, and that is, whether or not there was an unreasonable refusal by the employer to allow the employee to have a support person present.

The unfair dismissal provisions are intended to come into force on 1 July 2009.
Protection from unfair dismissal will apply to:

  • employees who have been employed for more than 12 months if employed by a small business employer;
  • employees who have been employed for more than 6 months with an employer who is not a small business employer; and
  • an employee who earns less than the high income threshold (initially $100.000).

Small Business:

  • The Bill has abolished the 100 employees exemption contained in the Act
  • The Bill establishes a ‘Small Business Dismissal Code’ which is to apply to businesses with less than 15 employees. The Code sets out circumstances when summary dismissal is justified and provides a checklist for employers to follow to ensure the dismissal is fair to both employees and employers.

Role of FWA in unfair dismissal applications:

  • Bill requires that an application for unfair dismissal must be made, except in exceptional circumstances, within 7 days after the dismissal took effect.
  • A lawyer or paid agent can appear only with the permission of FWA.
  • The Bill prescribes that FWA must not grant permission to appeal a decision unless FWA considers it is in the public interest to do so.
  • FWA can also grant an appeal on the grounds that there has been a significant error of fact.

Instances where unfair dismissal provisions will not be available to employees:

  • the employee was employed for less than 12 months by a small business employer;
  • the employee was employed for less than 6 months where the employer employed more than 15 employees;
  • where the employee earns more than the high income threshold and they are not covered by an enterprise agreement or a modern award; and
  • in the case of genuine redundancy.