Unfair dismissal - ACTU Australian Unions
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Unfair dismissal, discrimination and redundancy

All Australian deserve to be treated fairly and with respect. There are special laws that prevent discrimination on the basis of your gender, race, cultural or religious background. And, under the new Fair Work laws, all workers who have served a qualifying period are legally protected from being sacked unfairly.

In the current difficult economic times, it is especially important that workers know their rights and that employers talk to their staff if their business is not doing well.

Many workers have lost hours and jobs as a result of the global financial crisis during the last two years.

But a slow economy is no excuse for employers to act unlawfully.

Changes to permanent contracts should happen through a process of negotiation and consent. Your employer can not simply decide to cut your wage or hours without consultation.

If your job is being made redundant – if your employer can no longer afford for anyone to do it – you should access the full redundancy benefits owed to you.

Even if the economy is not going well, businesses should not dismiss any workers unfairly or on discriminatory grounds.

What is Unfair Dismissal?
Unfair dismissal is when you are sacked in a way that is considered to be harsh, unreasonable or unjust.

Access to unfair dismissal laws is critical to ensure both that workers can challenge unfair termination, and to act as a deterrent to employers who would dismiss workers unfairly and without regard for the difficulty that termination can cause. Unfair dismissal laws also play in important role in creating safe and fair workplaces.

Under the new laws, other than workers who have not served the necessary qualifying period, or who earn over the income threshold, all workers can access unfair dismissal.

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Warnings
It is very intimidating to receive a warning from work. There are a few things that workers should know about receiving warnings.

Official warnings can be given verbally or in writing. They have the same effect. If the warning is verbal your boss needs to make it clear that it is an official warning.

If your boss has given you a warning legitimately, it has been given to put you on notice that your performance in some area requires improvement.

You are required a reasonable chance to undertake the improvements asked of you. This means being given adequate time to respond and further training if required.

It is commonly thought that a ‘three warning’ rule exists, whereby a dismissal can happen only after three warnings. In fact, only one warning is mandatory.

Warnings should only be given in good faith. They should not be used to intimidate or bully workers, or be motivated by any form of discrimination against a particular staff member.

You can disagree with the content of a warning. If the warning is in a written form, you do not have to sign it. Alternatively, you may wish to write on the warning that you disagree with it and then sign it.

Whether the warning is written or verbal, if you disagree with it, it is a good idea to do so in writing. Where a warning is disputed it will still have effect as a warning.

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Notice of termination

Permanent workers must be given notice of termination if their job is terminated. If they are not, they must be paid out their termination notice at their ordinary rate of pay.

Notice of termination does not apply to casual workers, probationary, seasonal or fixed-term employees, or to workers who earn over $123,300 per year.


The minimum required notice periods are:

Employee's period of continuous service with the employer at the end of the day that notice is given          Period       
Not more than 1 year           1 week

More than 1 year but not more than 3 years

         2 weeks
More than 3 years but not more than 5 years           3 weeks
More than 5 years           4weeks


If you are over 45 years old and have completed at least 2 years of continuous service, then you should add one week to the notice periods listed here.

Check your award or agreement to find out if you should receive more notice than this.

If your job was terminated and you did not receive notice, or you pay in lieu of notice, then you are eligible to lodge a complaint with the Fair Work Ombudsman.

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Qualifying Period

Workers have to have served at least 6 months in the same job before they can challenge a dismissal as unfair.

If you work for a business that has less than 15 employees (that is, you work for a small business), then you have to have served for 12 months before you can claim for unfair dismissal.

Employees earning over $123,300 annually do not have access to unfair dismissal laws.

The $123,300 figure cannot include bonuses or commissions unless the employer has guaranteed that these will be paid.

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Lodging an Unfair Dismissal Claim
Unfair dismissal claims can be made to Fair Work Australia (FWA) and must be lodged within 21 days of the date of the dismissal.

There is a fee associated with lodging a claim, of $64.20. In circumstances where it can be shown that the fee would create serious hardship for the person filing the claim, the fee can be waived.

It is also possible to have a claim heard after the 21 day notice period, if the claimant can show exceptional reasons why the application was late.

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Discrimination and Unlawful Termination

It is illegal to be discriminated against or sacked on the basis of race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Unlawful termination occurs where the termination of a job has involved discrimination against an employee.

It also constitutes unlawful termination if you are sacked because of a temporary absence from work due to illness or injury, trade union membership or non-membership, participation in trade union activities outside working hours or, with the employer’s consent, during working hours, being an employees’ a representative, taking parental leave or community leave, or for making a complaint or participating in proceedings against your employer.

If you have experienced discrimination at work you can lodge a complaint for adverse action with the Fair Work Ombudsman (FWO). You can lodge unlawful termination claims with the FWO.

You have 21 days within the date of the unlawful termination to make the complaint.

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Redundancy
Redundancy occurs where the employer no longer requires that a worker’s job be done by anyone, or the employer becomes bankrupt or insolvent.

If you are made redundant you should be have severance pay, as well as the relevant notice period and any accrued leave you have, paid out.

However if at the time of being made redundant your employer employed fewer than 15 workers in permanent or ongoing regular work, then you are not entitled to severance pay.

While awards and agreements may allow for higher rates of severance pay, the following are the minimum rates of severance required under the new laws.

 
Employee's period of continuous service with the employer at the end of the day that notice is given Period
 
Period
 
  At least 1 year but less than 2 years   4 weeks  
  At least 2 years but less than 3 years   6 weeks  
  At least 3 years but less than 4 years   7 weeks  
  At least 4 years but less than 5 years   8 weeks  
  At least 5 years but less than 6 years      10 weeks  
  At least 6 years but less than 7 years       11 weeks  
  At least 7 years but less than 8 years       13 weeks  
  At least 8 years but less than 9 years       14 weeks  
  At least 9 years but less than 10 years       16 weeks  
  At least 10 years       12 weeks  


Redundancies must be genuine. The job that you were doing must genuinely no longer be required to be done by anyone. Where a redundancy is genuine you can’t claim for unfair dismissal or unlawful termination.

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More information

Human Rights and Equal Opportunity Commission
Fair Work Ombudsman
Fair Work Commission