The most common dispute that arises in employment law surrounds dismissal. Unfair dismissal claims may concern the manner of dismissal or the reasons for the termination. A finding of unfair dismissal does not require the action to have been unlawful. It is based on the termination being harsh, unjust or unreasonable. In circumstances where an employee has been dismissed, and believes the dismissal was unfair, he or she may choose to commence proceedings against the employer for unfair dismissal.
Which Act applies?
How you commence these proceedings depends on whether the employment is covered by the Fair Work Act 2009 or the Industrial Relations Act 2016.
If you are employed by the state or local government or their subsidiaries, you are covered by the Industrial Relations Act (Qld) and must pursue your claim through The Queensland Industrial Relations Commission.
Proceedings under the Fair Work Act
If you are making an application under the Fair Work Act, you do so by completing this application and submitting it to the Fair Work Commission. If your application is successful the FWC may order that you be reinstated to your former employment, or that the employer pay you compensation. If you are reinstated, the FWC may also order that the employer pay you lost wages from the period of your dismissal to the period of your reinstatement.
The FWC will find dismissal to have been unfair if it is satisfied that the dismissal was harsh, unjust or unreasonable in the circumstances. This may be because
- There was insufficient reason for the dismissal;
- In the case of a redundancy, that the redundancy was not a genuine redundancy;
- The employee was not notified of the reason prior to the dismissal;
- The employee was not provided with an opportunity to respond;
- No warning was issued to the employee regarding unsatisfactory performance etc.
You will not be found to have been unfairly dismissed if:
- You are still within your probationary period (generally 3 months, but check your contract);
- You were working on a short-term casual basis;
- You engaged for a specific task or period (subject to some exceptions); or
- You were earning an annual wage over the high-income threshold (currently $136, 700 per annum.)
Proceedings under the Industrial Relations Act
If you are employed under the Industrial Relations Act and you believe you have been unfairly dismissed, you can apply for reinstatement by filling in this form and paying a fee of $67.30. For your application to be successful you must:
- Apply within 21 days of the date the dismissal took effect;
- Serve a copy of the application on the employer within 7 days;
- Not have been within your probationary period (generally 3 months, but check your contract);
- Have been employed for at least 12 months if a small business employee, or 6 months otherwise;
- Not have been working on a short-term casual basis;
- Not have been engaged for a specific task or period (subject to some exceptions); and
- Not have been earning an annual wage over the high-income threshold;
Remedies for Unfair Dismissal
If the Industrial Relations Commission finds that your dismissal was harsh, unjust or unreasonable, or was for an invalid reason, it may order your reinstatement to your former employment or your reemployment in another position. If reinstatement or reemployment is inappropriate, it may order compensation.
What if I have exceeded the 21-day time limit?
Both the FWC and IRC have the discretionary power to extend the time limit for making an application in relation to unfair dismissal. In deciding whether to exercise this discretion, they will take into account the reason for the delay, the prejudice an extension of time would place on the employer, the general merit of the application, and public policy (how the decision will affect other persons in a similar position).
What if I have not been working for my employer for the required period?
This is a problem faced by many employees, especially those who have been employed for less than one year with a small business. In these circumstances, the Act provides little recourse for the employee to obtain a remedy. However, if the employment contract provides for specific obligations that must be met prior to dismissal for unsatisfactory performance, it may be possible to seek a remedy through the courts. An example is where an employment contract incorporates a performance management policy, and the policy is not adhered to prior to termination.
How can we help?
We understand the pressures that can arise out of employment disputes. Our solicitors have considerable experience in navigating these issues and assisting parties in coming to an amicable resolution. Specifically, we can assist in:
- Providing legal advice in relation to a variety of employment related issues;
- Preparing employment contracts, policies, and correspondence;
- Collaborative resolution of employment related disputes;
- Preparing appropriate court documents to commence or defend an employment related claim; and
- Appearing in court on your behalf in employment related proceedings.