Have you ever been anxious about the prospect of losing your job for voicing your apprehensions about pay or working conditions? Or perhaps worried about the sudden declaration of your role being redundant?
Understanding the intricate mechanisms of lawful terminations can seem like a daunting task, especially when you suspect that you have been unfairly targeted. We’ve teamed up with three distinguished labor law experts to shed light on circumstances under which an employer can rightfully terminate an employee and the options you have if you think you’ve been wrongly terminated.
Identifying the Root Causes of Employment Termination There’s a myriad of reasons that could lead an employer to end an employee’s tenure. However, our experts have categorized the most common causes into three significant clusters.
Serious misconduct includes scenarios such as physical altercations at work, engaging in illegal activities during working hours, verbal client mistreatment, or showing up to work intoxicated.
If your actions pose a danger to your colleagues or jeopardize your employer’s business standing or operational effectiveness, it’s likely your employer is justified in discontinuing your employment.
In such cases, you should receive a detailed account of the alleged grave misconduct accusations and be granted an opportunity to present your viewpoint in a meeting, accompanied by a representative of your choice.
Inadequate Performance Your employer is within their rights to terminate your employment due to lackluster performance, but they must adhere to an appropriate process.
This process generally encompasses clear warnings, necessary training, and opportunities to improve your performance.
However, it’s crucial to remember that even if you’re not meeting performance expectations, your dismissal might be deemed unfair if you haven’t been informed about your underperformance.
- Genuine Redundancy During times of business decline or organizational restructuring, your employer might be in a position to announce your role redundant. The legitimacy of the redundancy is a vital consideration here.
If there’s no one else expected to take on your role and your employer has fulfilled their consultation duties as outlined in the award or other workplace agreements, the redundancy could be seen as legitimate.
Frontline Employment Defenders strongly advises employees to watch out for terminations disguised as “reorganizations,” which might actually be strategies for dismissing someone due to inadequate performance or misconduct.
Challenging Unfair Dismissal If you find your employment terminated without a valid reason or without adhering to due process, you could consider lodging an unfair dismissal claim.
For your claim to be entertained, you must have been employed for a minimum period of six months, or one year for small businesses employing fewer than 15 individuals.
It’s of paramount importance to remember the stringent 21-day window for submitting applications for unfair dismissal claims to the Fair Work Commission. This deadline is generally strictly enforced.
If you’ve been terminated for voicing concerns about your work environment, like wages or union activities, you might be in a position to challenge the decision with a separate “general protections dismissal” claim. It’s important to remember these claims also come with a 21-day deadline.
Rights of Contract and Casual Employees Contract employees—hired for a specific period—usually have no assurance of contract renewal from their employer. But if you’ve been working on back-to-back contracts for several years and suddenly find your contract not being renewed, you might be eligible to lodge a claim.
On the other hand, genuine casual employees—those with irregular and inconsistent work schedules—are usually not qualified to claim unfair dismissal. However, if you’re classified as a casual but working regular and systematic hours, you might be able to bypass this restriction and file a claim.
Lodging an Unfair Dismissal Claim Claims for unfair dismissal and general protections dismissal are handled by the Fair Work Commission.
Once you’ve submitted your application, both parties will be invited to a telephonic conciliation meeting. Interestingly, about 80% of cases find resolution at this stage.
If conciliation doesn’t yield a satisfactory outcome, the case will be moved to a formal hearing, where a commission member will pass a judgment after examining evidence and arguments from both parties.