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Unfair Dismissal (NT)

In the Northern Territory, unfair dismissal is a relatively common employment law dispute. Claims of unfair dismissal typically concern the manner of dismissal or the reasons (or lack thereof) given for the termination. This article defines unfair dismissal in the Northern Territory and explains how an employee can commence proceedings against their former employer.

What is Unfair Dismissal in NT?

The rules around unfair dismissal vary based on the size of the employer. A small business (an entity with less than 15 employees) must follow the Small Business Fair Dismissal Code. Under this code, an employee of a small business can only make an unfair dismissal claim if they have worked with their employer for more than one year. In medium and large companies, an employee must have worked for their employer for at least six months.

A casual employee needs to show that they worked on a regular schedule during their employment and that they had an expectation of continued employment. Sometimes an employee has not been employed for long enough to seek remedy through unfair dismissal law. It is possible, however, that the employment contract might specify obligations that must be met before a worker can be dismissed for unsatisfactory performance. In that case, if the employer fails to abide by a performance management policy, the employee can sue their former employer for breach of contract.

Generally speaking, unfair dismissal provisions are not intended to assist high-income earners in disputes with their employers. To make a claim under the legislation, the claimant must be covered by a Modern Award or an Enterprise Agreement, or have earned less than the High Income Threshold. In addition, contract workers in the Northern Territory are not covered by unfair dismissal law. However, in the Northern Territory, all employees have general workplace protections, including high-income earners, casual workers and independent contractors. If an employee is demoted or terminated due to the exercise of a workplace right, they may be able to make a general protections claim in the Northern Territory.  Additionally, a person who is demoted or fired because of a protected attribute, such as sex, race, disability or sexuality, can make a discrimination claim.

Elements Of Unfair Dismissal

For employees with more than a year of tenure (or six months for employees of medium and large companies), unfair dismissal is comprised of three elements:

  • A dismissal or demotion (not a resignation, except in cases of constructive dismissal);
  • That is not a genuine redundancy; and
  • That is harsh, unjust or unreasonable.

Was The Dismissal Harsh, Unjust Or Unreasonable?

To be an unfair dismissal, the dismissal must have been harsh, unjust or unreasonable. The Commission will consider specific factors outlined in the Fair Work Act 2009(Cth), such as whether there was a valid reason for the employee’s dismissal, whether the employer notified the worker of the reason for the dismissal, and whether the employee was given a chance to respond to this issue.

Was There A Genuine Redundancy?

A genuine redundancy occurs when an employee’s job is no longer required because of operational changes to the business. It is only a genuine redundancy when the employer follows the consultation obligations outlined in the worker’s Modern Award, Enterprise Agreement or registered agreement. A redundancy is not genuine when the employee’s role will be assumed by another employee who will do substantially the same work. When redundancy is used to end the employment of an unsatisfactory employee, this is considered an unfair dismissal, as the employer should have followed a different procedure to terminate the employment.

Making An Unfair Dismissal Claim

An employee who is dismissed unfairly can choose to make a claim of unfair dismissal. As there is no separate Northern Territory industrial relations body, all industrial matters must be pursued through the Fair Work Commission (FWC). A worker can apply to the FWC within 21 days if they have been unfairly dismissed from their employment. The FWC may consider an application made outside this deadline in exceptional circumstances. The FWC might exercise their discretionary power depending on the reason for the delay, the general merits of the application, public policy, and the imposition on the employer if the extension is granted.

When the FWC receives the application, it sends a copy to the employer and invites the two parties to attend a conciliation. If the parties do not reach an agreement during this meeting, the matter can proceed to a hearing where the FWC decides whether the dismissal was unfair. The complainant needs to prove that they have been subject to an adverse action, or the threat of adverse action, that breaches a general protection. Examples of adverse action include discrimination, dismissal and negative changes to the worker’s employment. In that case, the FWC can order that the employer reinstate the employee or pay compensation.

Contact Go To Court Lawyers on 1300 636 846 if you feel that you have been unfairly dismissed by your employer. Our experienced solicitors can provide ease of mind on the legal issues, and help you obtain maximum compensation.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.

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