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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.
Dismissal
- The position is no longer required
- An employees conduct
- Capacity of performance
Resignation
- 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'
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