Evening the Playing Field: Unfair Dismissal Laws

Unfair Dismissal laws even the playing field between workers and companies and can provide vulnerable workers with a much-needed platform to seek redress for their dismissal. The outcome of Unfair Dismissal applications will reflect a consideration and balancing of the worker’s interests against the company’s interests; everyone will get a fair go.

What is Unfair Dismissal?

Unfair Dismissal will have occurred when a worker has been dismissed from their job and that dismissal was harsh, unjust or unreasonable, and was not in fact a case of genuine redundancy where the company no longer requires the person’s job to be performed by anyone.

Before making an application:

Unfair Dismissal is the appropriate avenue for redress when the desired outcome is reinstatement and applications pursuant to the Fair Work Act 2009 (Cth) can be made to the Fair Work Commission. To be eligible to make an application they must meet several requirements such as:

1. be a national system employee, which means working for:
   1. a constitutional corporation
   2. a commonwealth or a commonwealth authority
   3. any other person or entity that carries on an activity (whether of a commercial, governmental or other nature) in a Territory and employs persons in connection with that activity
2. having worked for at least 6 months for a company with more than 16 workers, and one year for a company with less than 16 workers
3. falling under one of the following categories:
   1. earning less than the high income threshold (currently $136,700 per year (2015/16));
   2. being covered by a modern award; or
   3. being covered by an enterprise agreement;

Applying for Unfair Dismissal:

For an application to be successful, the worker must have been dismissed. Dismissal occurs when:

1. on the company’s initiative the company has terminated the worker’s job; or
2. a worker’s resignation was forced by the conduct of the company or the worker was given no practical option but to resign.

To amount to Unfair Dismissal, the dismissal must be harsh, unjust or unreasonable. When determining this, the Commission must take into account whether there was a valid, sound and defensible reason for the dismissal that relates to the applicant’s capacity or conduct. Examples of such cases include:

• where there is no evidence more than a suspicion by the company that the worker has committed a crime, such as theft (Black and Santoro v Ansett Australia Limited (2009))
• where there is no proof that a worker assaulted another worker (Dewson v Boom Logistics Ltd (2012))
• failure to report the dishonesty of another worker (Crockett v Vondoo Hair (2012))
• premature dismissal after an incident that had little overall effect on the company’s reputation (Fraser v Imparja Television (2002))
• dismissal after worker’s online misconduct where there is a history of inequitable treatment of worker’s online misconduct, coupled with a lack of company’s social media policy (Stutsel v Linfox (2011))

In addition, section 387 of the Fair Work Act outlines further matters the Commission should take into account when considering an application for Unfair Dismissal:

1. whether the worker was notified of the reason for dismissal
2. whether the worker was given an opportunity to respond
3. if the dismissal related to unsatisfactory performance by the worker
4. the size of the company’s enterprise and company’s access to dedicated human resources management specialists
5. any other matters the Commission sees as relevant.

Outcome: Reinstatement vs Compensation

If a worker’s application is successful, a remedy that he or she may receive may be reinstatement of their previous job. If reinstatement is not appropriate, the worker will receive compensation for their lost income.

The determination of whether reinstatement is appropriate relies heavily on the each case’s circumstances. Some factors contributing in the past to a finding that reinstatement is not appropriate are:

• where the trust and confidence of the relationship has broken down (Australian Meat Holdings Pty Ltd v McLauchlan (1998))
• the position has been filled by another person (Smith v Moore Paragon Australia Ltd (2004))
• threats of violence made to other workers by the applicant (Galea v Tenix Defence Pty Ltd (2003))
• when an incapacitated, sick or injured worker is unable to perform contractual obligations and would impose an unreasonable burden on the company or other workers (Smith v Moore Paragon Australia Ltd (2004))
• when the worker’s conduct amounts to a health and safety breach (Parmalat Food Products Pty Ltd v Wililo (2011))

Simply because litigation has arisen as a result of dismissal is not enough to amount to being inappropriate to reinstate (Wark v Melbourne City Toyota (1999)). If a worker is granted an order for reinstatement, he or she will be appointed to their former position, or a new position where the terms and conditions of that position are no less favourable than that former position.

If you feel that you have been unfairly dismissed from your job and wish to make an application to the Fair Work Commission, as a general rule, you have 21 days after the date of dismissal to do so. Should you require assistance or advice at any stage of your application to the Fair Work Commission, MKI Legal’s experience in employment relations disputes means your situation will be handled cost-effectively and efficiently to limit any further financial and emotional strain of being dismissed from your job.