An employee will have been unfairly dismissed if their termination was harsh, unjust or unreasonable. An employee can still be unfairly dismissed, even if the usual notice period is given.
A person has been dismissed if:
- 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, or a course of conduct, engaged in by his or her employer.
Unfair dismissal is a complex area of law and needs to be dealt with promptly; individuals who have been unfairly dismissed only have 21 days from the date of dismissal to make an unfair dismissal complaint to the Fair Work Commission.
Here is an article we wrote on the subject: ‘What is unfair dismissal?’
Unfair dismissal covers a wide range of conduct, including conduct on the part of the employer that forces an employee to resign. This is known as constructive dismissal. Other circumstances which may be considered constructive dismissal is where the employee is demoted, except where the demotion does not involve a significant reduction in his or her remuneration or duties.
If the employee was employed for less than 12 months (in the case of a business with less than 15 employees) or 6 months (in the case businesses with more than 15 employees) then the unfair dismissal laws will not apply.
Employees who earn more than $133,000 per annum are not entitled to claim unfair dismissal. However, they may have contractual remedies which can be pursued through the courts. See contractual disputes.
Small businesses are not required to comply with as many requirements as larger businesses. It is easier for small businesses to dismiss employees without being caught by an unfair dismissal claim. Small businesses must follow the Small Business Fair Dismissal Code [https://www.fwc.gov.au/about-us/legislation-regulations/small-business-fair-dismissal-code].
If you plan to dismiss an employee, please speak to one of our experienced employment lawyers in Sydney to ensure that the dismissal is fair.
Alternatively, if you have been dismissed from your position in a manner which you consider was harsh, unjust or unreasonable, one of our experienced unfair dismissal lawyers may be able to reinstate you to your position, negotiate a more favourable termination payment or recover your full entitlements plus compensation.
Call us on 9232 8033 to speak to one of our unfair dismissal lawyers (at no charge), or email firstname.lastname@example.org.