The complexities of the industrial relations system can often be overwhelming. It’s vital for both employers and employees to understand the legal landscape, specifically concerning unfair dismissal claims. This blog post will offer an insightful exploration of the related laws, rights, and obligations.
Understanding Unfair Dismissal
The Fair Work Act is the legislation responsible for the national industrial relations framework, outlining minimum employment conditions and protections, including the grounds for unfair dismissal. It also lays out the obligations that employers must meet. The Fair Work Commission (FWC), a federal body, regulates most workplace matters and handles applications for unfair dismissal claims.
The aim of such an application is not just to potentially provide relief to employees, but also to offer a structure that allows businesses and employees to handle these applications in a flexible, efficient, and informal way.
In order to file an application, the person must first be an employee, likely having a contract with the employer, either written or verbal. Under certain conditions, a person considered an independent contractor may, in fact, be an employee and therefore able to lodge a claim with the FWC.
Conditions for Protection from Unfair Dismissal
For an employee to be protected from unfair dismissal, several conditions must be met:
- The employee was dismissed.
- The dismissal was ‘harsh, unjust or unreasonable.’
- The dismissal was not a genuine redundancy.
- The dismissal was not consistent with the Small Business Fair Dismissal Code, if applicable.
Who does the Legislation Apply to?
The Fair Work Act applies to what’s known as ‘National System Employers’. However, the definition can vary slightly from state to state. If an employer is classified as a National System Employer, they are bound by the Act. Notably, certain employers are not covered by the Act and will instead be subject to state-based legislation.
Eligibility for an Unfair Dismissal Application
To make an application, an employee must meet several criteria, aside from being an employee:
- Completion of a minimum employment period, which is six months for larger employers (15 or more employees) and 12 months for smaller employers (less than 15 employees).
- Earning less than the high income threshold. However, employees who earn more than this threshold can still be eligible if their employment is covered by a modern award or enterprise agreement.
- They must have been dismissed.
Deciphering the Terms
When dealing with unfair dismissal claims, it’s important to understand key terms like ‘dismissed’, ‘harsh’, ‘unjust’, ‘unreasonable’, and ‘valid reason’.
‘Dismissed’ applies when the employment was terminated by the employer or when the employee was forced to resign due to the employer’s actions. A dismissal might be ‘harsh’ if the punishment was disproportionate to the employee’s misconduct. It could be considered ‘unjust’ if the employee was innocent of the alleged misconduct, and ‘unreasonable’ if there was insufficient evidence to warrant a dismissal.
The FWC must take into account certain criteria when determining if a dismissal was harsh, unjust, or unreasonable, as per Section 387 of the Act.
Finally, ‘valid reason’ refers to a sound, well-founded reason for dismissal relating to an employee’s conduct, capacity or performance. Misconduct, for instance, might include breach of company policy, dishonesty, or behavior posing serious risk to health and safety or the business’s reputation.
Understanding these terms and regulations can empower both employers and employees, promoting a fair and equitable workplace environment.
Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit https://www.fled.com.au