All Victorian employees are now covered by the federal workplace relations legislation with respect to unfair dismissal in Victoria. Those laws are contained in the Fair Work Act 2009 (Cth) (FWA).
What is unfair dismissal in Victoria?
Section 385 of the FWA states that a person is unfairly dismissed from his or her job if: the dismissal was harsh, unreasonable or unjust; if, where the employer states that the termination of employment is due to redundancy, it was not a genuine redundancy; and/or if the dismissal was not, in the case of small business employees (i.e. businesses with less than 15 employees), consistent with the Small Business Fair Dismissal Code. For the purposes of the unfair dismissal laws, a dismissal may arise from having your employment terminated, or may result from circumstances where you are forced to resign as a consequence of your employer’s behaviour (also known as “constructive dismissal”). Common scenarios where an employee may be unfairly dismissed include where a redundancy is not a genuine redundancy, where no reason is given to the employee for the dismissal, where the employee was not informed of the reasons for their dismissal, or the employee was dismissed for poor performance but never warned that they were performing poorly.
What is not unfair dismissal in Victoria?
A dismissal will not occur if you have been working under a fixed term contract and that term of that contract expired without the renewal of the contract. There will not be a dismissal if the termination of your employment is due to your employer making you redundant. Your dismissal will be a genuine redundancy if your job is no longer required to be performed by anyone, and your employer has complied with any obligations it has under an award or enterprise agreement to consult with you regarding redeployment, or other required matters, prior to making you redundant. The Small Business Fair Dismissal Code provides guidance to small business owners on when a dismissal is justified; for example, summary dismissal for theft.
Eligibility to bring an unfair dismissal claim
You must satisfy certain eligibility requirements in order to make an unfair dismissal claim before the Fair Work Commission. These eligibility requirements are the first thing that will be checked by the Commission at an unfair dismissal conference or hearing. Firstly, you must have completed a continuous period of service with your employer of at least 6 months (or 12 months if the employer has less than 15 employees). Your annual earnings (not including superannuation) must be less than the prescribed amount of $133,000, or, if your earnings are over this amount, you must be covered by an award or enterprise agreement. Casual employees are generally excluded from bringing an unfair dismissal application, unless they have systemic hours of employment and an ongoing expectation of work. Trainees and contractors are also generally excluded from unfair dismissal laws for the same reasons.
Procedure for unfair dismissal claims
Applications for making unfair dismissal claims must be lodged with the Fair Work Commission within 21 days of the dismissal. This timeframe is strictly enforced and only in rare circumstances will the Commission allow an application to be heard if it is filed after this deadline. The application form for unfair dismissals is located here. After you have lodged your application, a representative of the Fair Work Commission will contact you to arrange a conciliation meeting with your former employer, which is held by an independent conciliator from the Commission. The parties may agree to settle on terms including: providing an apology, providing a reference or statement of service, payment of financial compensation or reemployment. If conciliation is unsuccessful, a member of the Fair Work Commission will hold a conference or a hearing to resolve a dispute. Conferences are generally private and hearings are held in public; the Commission will let you know which applies to your application by issuing you with a ‘Notice of Listing’. You will require permission to be represented by a lawyer at the conference or hearing if they are not from a union. You can also give evidence to the Commission in the form of witness statements.
Unfair dismissal decisions
The member overseeing the conference or hearing must take into account a number of factors in deciding whether your dismissal was harsh, unreasonable or unjust. These include but are not limited to whether a valid reason existed for your dismissal, whether you were told why you were being dismissed and given a chance to respond, whether you were previously warned about performing your duties poorly (if this was the reason you were dismissed) and any other factors that are considered to be relevant. The Commission may order that your claim be dismissed, that you be reinstated in your job and receive back pay, or that you be paid financial compensation (the maximum amount of which will usually be the equivalent of 26 weeks’ remuneration or, if your earnings are more than $133,000 per annum, half of that amount). The maximum compensation amount is rarely awarded.
Appealing a decision
If you make an unfair dismissal claim and it is unsuccessful, you cannot appeal the decision of the Fair Work Commission unless it grants you the right to do so. It will only do so if it considers it to be in the public interest to let you appeal the decision. If the appeal is granted, a full bench of members will hear the appeal. If you are unhappy with the decision on appeal, you can make a further appeal to the Federal Court.