Is it lawful for an employer to deem a role redundant only to recruit someone for a similar role shortly after?
Understanding the legality of employee dismissals can be complex, especially when you suspect that you’ve been subjected to unjust treatment. We’ve connected with three seasoned employment attorneys to explore the circumstances under which an employer can rightfully terminate your employment, and what actions you can pursue if you feel you’ve been unjustly dismissed.
Common Grounds for Employee Dismissal
There are a multitude of reasons an employer might have to fire an employee. However, the majority of cases can be classified under three primary categories, ac
- Serious Misconduct which includes actions such as physical altercations, illegal activities while at work, verbally abusing clients, or showing up to work under the influence of drugs or alcohol.
If your actions pose a potential threat to someone or could tarnish your employer’s reputation or business interests, it’s likely your employer can justifiably end your employment.
Accusations of serious misconduct should be discussed with you in a meeting where you have the right to be accompanied by a support person and given the chance to present your perspective.
- Inadequate Performance Your employer has the right to terminate your employment due to poor performance, but only after following a certain process.
Before making a termination decision, the employer should provide clear warnings, necessary training, and opportunities for improvement.
It’s important to note that even if an employee has been underperforming, their dismissal could be deemed unjust if they weren’t given prior notice.
- Genuine Redundancy If a business downturn or a reorganisation occurs, your employer might be allowed to render your role redundant. Whether the redundancy is genuine is crucial, states Professor Forsyth.
If your role doesn’t need to be filled by anyone else, and your employer has met their consultation obligations as set out in the award or other workplace agreement, the redundancy will likely be considered genuine.
However employees need to watch out for terminations disguised as “restructuring,” which are really about eliminating someone due to poor performance or misconduct.
How to Contest Unjust Dismissal
If your employer hasn’t given you a legitimate reason for terminating your employment, or if they haven’t adhered to the correct process, you might have a case for making an unjust dismissal claim.
For the claim to be valid, you need to have worked in the job for a minimum of six months. For small businesses with fewer than 15 employees, this period extends to at least 12 months.
It’s crucial to remember the strict 21-day time limit to submit applications for unjust dismissal claims to the Fair Work Commission.
If you’ve been terminated for raising concerns about your workplace, such as wages or union membership, you might be able to contest the decision with a separate “general protections dismissal” claim. These claims also have a 21-day deadline, so remember that.
Rights of Fixed-term and Casual Employees
Fixed-term employees—those contracted for a specific period—typically have no expectation for contract renewal from their employer. However, if you’ve been engaged on rolling fixed-term contracts for numerous years and suddenly your contract isn’t renewed, you may be able to make a claim.
Meanwhile, genuine casual employees—those who work on a sporadic and inconsistent basis—are typically ineligible to claim unfair dismissal. However, if you’re employed as a casual but working regular and systematic shifts, you may be able to bypass this exclusion and bring a claim, says Professor Forsyth.
How to File an Unfair Dismissal Claim
Claims for unfair dismissal and general protections dismissal are processed by the Fair Work Commission. To make a claim, there’s a small application fee of $73.20, but this can be waived in cases of extreme financial hardship.
Once you’ve lodged an application, you and your employer will be invited to a conciliation meeting via telephone.
If conciliation isn’t successful, the case will proceed to a formal hearing, where a member of the commission will make a decision after hearing evidence and arguments from both parties.
Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit https://www.fled.com.au