Unfair dismissal (Australia)

In Australian industrial law, unfair dismissal refers to an unlawful act of employment termination due to it being an unfair action on the employee by the employer.

History

The ability for an individual to seek relief from unfair dismissal was first established in a statutory scheme in South Australia in 1972,[1][2] followed thereafter by Western Australia,[3] Queensland,[4] New South Wales[5] and Victoria[6] in the early 1990s.

Protection from unfair dismissal at the Commonwealth level was enhanced in 1984 by the Commonwealth Conciliation and Arbitration Commission with its ruling in the Termination, Change and Redundancy Case,[7][8] that awards should contain a provision that dismissal "shall not be harsh, unjust or unreasonable" and subsequent awards following it were upheld by the High Court of Australia.[9][10][11] The Parliament of Australia later extended the reach of protection from unfair dismissal with the passage of the Industrial Relations Reform Act 1993,[12] which relied upon the external affairs power and the ILO Termination of Employment Convention, 1982.[13][14]

Contemporary law

Unfair dismissal findings

Unfair dismissal will be found to have occurred where the Fair Work Commission, acting under section 385 of the Fair Work Act 2009,[15][16] determines that:

  1. a person has been dismissed;[17]
  2. the dismissal was harsh, unjust or unreasonable;[18]
  3. it was not consistent with the Small Business Fair Dismissal Code;[19][20] and
  4. it was not a case of genuine redundancy.[21]

If the Fair Work Commission determines that a dismissal was unfair, the Commission must decide whether to order reinstatement or compensation.[22] The Commission is required to first consider whether reinstatement is appropriate and can only order compensation (capped at 6 months pay) if it is satisfied that reinstatement is inappropriate.[23]

Coverage

In general, people covered by unfair dismissal laws are those who have worked more than six months for an employer[24] (or more than one year for a small business employer),[25] for which one or more or the following conditions must apply:[26]

  1. a modern award covers the person;
  2. an enterprise agreement applies to the person in relation to the employment;
  3. the person's annual rate of earnings is determined to be less than the high income threshold.[27]

The scope of coverage is quite broad. The Commonwealth has declared that all employers falling within its jurisdiction are subject to the scheme, including:[28]

In addition, the States have delegated certain classes of employers by virtue of the Constitution's referral power:

Classes of referred employers, by State[29]
Class New South WalesNSW QueenslandQLD South AustraliaSA TasmaniaTAS Victoria (state)VIC Western AustraliaWA
Private employers[a 1] Green tickY Green tickY Green tickY Green tickY Green tickY
State government employers[a 1] Green tickY[a 2]
Local government employers[a 1] Green tickY Green tickY[a 2]
  1. which are not already regulated as constitutional corporations
  2. except for law enforcement officials and executives in the public sector

State jurisdiction

Where the Fair Work Act does not apply, relief from unfair dismissal may arise under State laws.[30] In Western Australia, recourse may be available from the Western Australian Industrial Relations Commission.[31][32]

See also

References
  1. Chapman, Anna (2009). "10: The Decline and Restoration of Unfair Dismissal Rights". In Forsyth, Anthony; Stewart, Andrew (eds.). Fair Work: The New Workplace Laws and the Work Choices Legacy. Sydney: Federation Press. p. 208. ISBN 978-1-86287-736-8.
  2. Industrial Conciliation and Arbitration Act, 1972 (SA) (No 125 of 1972), s. 15(1)(e)
  3. Industrial Relations Amendment Act 1993 (WA) (No 15 of 1993), ss. 6–7
  4. Industrial Relations Act 1990 (Qld) No 28 of 1990, s. 2.2(3)(c), whose scope was later extended by the Industrial Relations Reform Act 1994 (Qld) No 12 of 1994
  5. Industrial Arbitration (Unfair Dismissal) Amendment Act 1991, (NSW) No 11 of 1991, whose scope was later extended by the Industrial Relations Act 1996, (NSW) No 17 of 1996, Part 6
  6. Employee Relations Act 1992, (Vic) No 83 of 1992, Part 5, Division 1
  7. Southey 2015, p. 152.
  8. Termination, Change and Redundancy Case, (1984) 8 IR 34 (2 August 1984).
  9. Southey 2015, p. 153.
  10. Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63, (1987) 163 CLR 656.
  11. Re Federated Storemen & Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd [1989] HCA 10, (1989) 166 CLR 311.
  12. "Industrial Relations Reform Act 1993". No. 109 of 1993.
  13. Voll 2005, p. 537.
  14. The extent of the external affairs power had been determined by the High Court in Commonwealth v Tasmania ("Tasmanian Dam case") [1983] HCA 21, (1983) 158 CLR 1.
  15. Fair Work Act 2009 (Cth) s 385
  16. "Unfair dismissal". Fair Work Commission. Retrieved 25 July 2016.
  17. within the meaning of the Fair Work Act 2009 (Cth) s 386
  18. within the meaning of the Fair Work Act 2009 (Cth) s 387
  19. "Small Business Fair Dismissal Code". Fair Work Commission. Retrieved 25 July 2016.
  20. Fair Work Act 2009 (Cth) s 388
  21. within the meaning of the Fair Work Act 2009 (Cth) s 389
  22. Fair Work Act 2009 (Cth) s 390
  23. Regional Express Holdings Limited trading as REX Airlines [2010] FWAFB 8753 at par. 23 (12 November 2010)
  24. Strategies, Marketing ER (2021-06-24). "Unfair Dismissal | How to Avoid It". ER Strategies. Retrieved 2022-11-02.
  25. Fair Work Act 2009 (Cth) s 383
  26. Fair Work Act 2009 (Cth) s 382
  27. as determined under the Fair Work Act 2009 (Cth) s 333
  28. "Benchbook: Unfair Dismissals" (PDF). Fair Work Commission. July 2016. pp. 25–27.
  29. "Benchbook: Unfair Dismissals" (PDF). Fair Work Commission. July 2016. pp. 25–27.
  30. "Termination of Employment: National Guidelines for Managers and Supervisors in Australia". Clayton Utz. 2015.
  31. "Unfair Dismissals and Contractual Entitlements". Western Australian Industrial Relations Commission. Retrieved 25 July 2016.
  32. Industrial Relations Act 1979 (WA) s 23A

Further reading
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