An unfair Dismissal is any termination or ending of an employment contract by an employer when the employee has not done anything to warrant that termination.

There are two categories of termination that may end that employee / employer relationship.

• The position is no longer required
• An employees conduct
• Capacity of performance

• Employee can resign from his employment voluntarily
• Two weeks notice is required by law from the employee

Note: Most unfair dismissal cases occur with the by the first option and not resignation by the employee.

Legislation

Unfair and unlawful dismissal is covered under the Workplace Relations Act 1996 (Commonwealth).

Types of Termination of employment

Constructive dismissal · Can be recognised as a forced dismissal · Defined as a resignation by an employee because of actions or words from the employer led them to believe that they had no choice but to resign · e.g. the employer making substantial changes to an employees contract without consulting or the agreement of the employee

Summary Dismissal · Can be known as instant dismissal · When a decision is taken by an employer to fire the employee on the spot for gross misconduct e.g. theft or violence.

Who Can Apply for Unjust or Unreasonable Termination of their employment? ·

Only an employee who can meet the three "tests" is able to make an application. The time limit to lodge a claim for unfair dismissal is 21 days.

Step 1 'Employee must have completed a qualifying period of employment with the employer. The qualifying period of employment is defined as:

• 3 months; or
• a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or
• a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.

Step 2 An employee must also have been:

• covered by a Federal award or agreement and whose employer was a constitutional corporation; or
• employed in relation to interstate or overseas trade or commerce as a waterside worker, maritime employee or flight crew officer; or
• a Commonwealth public sector employee;

Step 3 The employee must also not come within one of the following excluded classes of employees:

• Specified term or specified task
• Probationary§ Casuals
• Trainees'