Unfair Dismissal Laws - How Workers In Australia Can Protect Their Rights If Unfairly Dismissed

If a worker in Australia is unfairly dismissed, he orreason, and
she has 14 days from the date of dismissal to3. whether the person was given an opportunity
bring an unfair dismissal claim before Fair Workto respond to any reason related to the capacity
Australia. Small business employers (with feweror conduct of the person, and
than 15 employees) are be able to seek immunity4. any unreasonable refusal by the employer to
from these claims.allow the person to have a support person
An employee of a small business employer willpresent to assist at any discussions relating to
only be able to institute unfair dismissaldismissal, and
proceedings if he/she has been employed with5. if the dismissal related to unsatisfactory
the business for at least one year. After this oneperformance by the person whether the person
year period a small business must be able tohad been warned about that unsatisfactory
demonstrate that it has followed the processesperformance before the dismissal, and
set out in the "Small Businesses Fair Dismissal6. the degree to which the size of the employer's
Code" in order to be able to successfully defendenterprise would be likely to impact on the
an unfair dismissal claim.procedures followed in effecting the dismissal, and
Employees who are engaged by businesses other7. the degree to which the absence of dedicated
than a "small business" (i.e. employers of 15 orhuman resource management specialists or
more employees) are only able to institute unfairexpertise in the enterprise would be likely to
dismissal proceedings where they have beenimpact on the procedures followed in effecting
employed for at least 6 months and earn lessthe dismissal, and
than $108,300 per annum.8. any other matters that FWA considers
FWA (Fair Work Australia) has the option torelevant.
conciliate a dispute or refer it to a hearing afterFair Work Australia has the discretion to permit
taking into account the views of the parties. Aeither party to be legally represented at a
hearing may be held at any time (i.e. before, afterconciliation conference or a hearing. A person
or during a conciliation conference). Before dealinginvolved in an unfair dismissal case before Fair
with the merits of an unfair dismissal claim, FairWork Australia must meet their own costs.
Work Australia must determine whether:However, Fair Work Australia may order a person
1. the application has been brought within theto bear some or all of the costs of another
prescribed time period;person if the unfair dismissal application or
2. the application has been made against a personresponse to it was frivolous, vexatious or made
who is protected from unfair dismissal;without reasonable cause or had no reasonable
3. whether the dismissal was consistent with theprospect of success. Otherwise, FWA may award
Small Business Fair Dismissal Code (if applicable);up to 6 months salary and/or reinstatement in
andcompensation for a successful unfair dismissal
4. whether the dismissal was as a result of aapplication.
genuine redundancy.SUMMARY
In considering whether a dismissal was harsh,Have you been unfairly dismissed or been on the
unjust or unreasonable, Fair Work Australia mustreceiving end of an unlawful dismissal?
take into account:Are you being treated unfairly by an employer?
1. whether there was a valid reason for theAre you worried by workplace bullying or
dismissal related to the person's capacity orharassment, or threats of redundancy?
conduct (including its effect on the safety andThe good news is that you can have a free initial
welfare of other employees), andconsultation with a Workplace Disputes expert via
2. whether the person was notified of thatthe link below.