Employees will be protected from unfair dismissal when they have completed the minimum employment period, which is:
A small business employer is one who employs less than 15 full-time equivalent employees. From 1 January 2011, a small business employer will be one with less than 15 full-time employees.
The employee must also either be covered by a modern award, an enterprise agreement or earn less than the high income threshold (currently $113,800 per annum).
It is also possible in some circumstances for casual employees to make a claim for unfair dismissal, provided they fulfil the above criteria and:
In order to access the unfair dismissal regime, the employee must have been dismissed. Employers need to be aware that dismissal may include situations where an employee has been forced to resign due to the employer’s behaviour.
A dismissal will not be unfair if it is a case of genuine redundancy. In order for a redundancy to be genuine, the employer must not require the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s business. Further, the employer must have complied with any applicable consultation requirements. Finally, it must not be reasonable for the employee to have been redeployed within the employee’s business.
Small business employers must also comply with the Small Business Fair Dismissal Code (“the Code”). If the Code is not complied with, the dismissal may be unfair.
For a dismissal to be unfair, it must have been harsh, unjust or unreasonable. In determining whether a dismissal is harsh, unjust or unreasonable, Fair Work Australia (“FWA”) will consider various factors including:
Applications for unfair dismissal must be made to FWA within 14 days of the dismissal occurring. In some exceptional circumstances, FWA may allow an application to be made out of time.
Once an application has been lodged, FWA will notify the employer who will be required to lodge an Employer Response to Application for Unfair Dismissal Remedy form within a specified period of time.
A conciliation conference will then be held and led by a FWA conciliator, and the parties will attempt to reach a resolution. If the matter does not reach resolution, a hearing may be scheduled.
The preferred remedy for unfair dismissal is reinstatement. However, where reinstatement is not appropriate, compensation may be ordered.