Being fired or sacked from a job can be distressing. Fortunately there are laws in Tasmania to prevent this from happening unfairly. Unfair dismissals in Tasmania fall under two categories; public sector dismissals and private sector dismissals. Public sector dismissals are dealt with under the State Service Act 2000, while private sector dismissals (including dismissals in local government) are heard under the federal Fair Work Act 2009 (Cth). This is an important distinction in Tasmania, in that local government employees fall under the national system, not the Tasmanian state system.
Public employees are those who are employed by the Tasmanian government. In these cases, unfair dismissal claims may be brought under the State Service Act 2000.
Under section 44 of the State Service Act 2000, the relevant Minster can terminate the employment of a State employee at any time with notice containing for the reasons for the dismissal. The reasons set out in the Act are;
- The employee breached the Code of Conduct.
- The employee is or was unable to efficiently perform the duties related to their role.
- The employee has not performed their role to the required standard.
- Any other reason prescribed in the regulations.
An employee who has been dismissed from the Tasmanian State Service, and believes that dismissal contravenes one of these grounds, can ask for the matter to be reviewed by the Tasmanian Industrial Commission under section 50 of the State Service Act and section 19AA of the Industrial Relations Act 1984. An application for review must be lodged within seven calendar days of the dismissal (this does not include public holidays).
The Tasmanian Industrial Commission is the body in Tasmania with jurisdiction to hear matters relating to unfair dismissal claims by State employees. The Commission has wide powers to conduct and resolve matters, including the authority to conduct dispute resolution (including mediation and conciliation) and to require witnesses to appear and documents be produced. If this is not successful, the Commission will then decide the matter via a hearing.
Section 385 of the Fair Work Act 2009 (Cth) provides a list of circumstances that must exist for unfair dismissal to have occurred. They are listed as;
- The person was dismissed from their job (this does not mean that a fixed term employment contract had ended) and;
- That dismissal was harsh, unjust and unreasonable and;
- The dismissal was not in conjunction with the Small Business Fair Dismissal Code and;
- The dismissal could not be said to have been a legitimate retrenchment (that is to say that the employee was surplus to the employer’s honest business requirements)
The main onus of terminated employees is to prove that the dismissal in question was harsh, unjust and unreasonable and section 387 states what factors are used to determine what harsh means in this context.
Factors which are relevant include whether there was a legitimate reason given for the dismissal which related to the employee’s conduct and/ or capacity, whether the employee in question was given notice, whether any warnings were given and whether the employee was given the chance to respond. These factors, however, are not exhaustive, and the Fair Work Commission (the national body which is set up to handle these kinds of claims), can take other matters it feels are relevant into account.
To be eligible to make an application under the federal system, an employee must be covered by the federal system (not a state employee under the State Service Act, but including employees of local governments in Tasmania) and be employed for the required time period. For small business employees (small businesses employ less than 15 people) this is one year and for all other employee it is six months. If the employee earns more than $133,000 a year, they can only make an application if they are covered by a relevant award or enterprise agreement.
An application must be lodged at the Fair Work Commission in Hobart within 21 days of the dismissal. There is an application fee payable at the time of lodgement. The Fair Work Commission will then conduct conciliation (mediation) between the parties to try and resolve the matter. If this is unsuccessful, the Fair Work Commission will subsequently conduct a hearing or a conference to resolve the matter.