Little A was working as a graphic designer at a property company when, one day, his boss suddenly told him that because of the pandemic the company no longer needed so many designers, and that after handing over his current projects he didn’t need to come in anymore. Little A was unhappy and confused: by dismissing him with just a notice like this, was the company acting fairly and lawfully?

In this article we’ll explain, under Australia’s employment law framework, how someone in Little A’s position — facing an “unfair dismissal” — should respond.

First, what is unfair dismissal?

When the Fair Work Commission (Australia’s Fair Work Commission) decides whether a dismissal is “unfair”, it considers whether the employer’s conduct falls into any of the following categories:

– The dismissal was harsh, unjust or unreasonable;

– The dismissal breached the Small Business Fair Dismissal Code;

– The dismissal was not a case of genuine redundancy.

What can you do if you’re unfairly dismissed?

Most employees can lodge a complaint against their employer after being unfairly dismissed. Apart from independent contractors, employees of a small business can apply to Fair Work for unfair dismissal after 12 months of service; employees of a non-small business can apply after 6 months of service.

* Here, a small business means one that employs fewer than 15 people in total at the time of the dismissal.

This includes situations such as: 

– The employer’s assessment of work performance was untrue or inaccurate; 

– The employee was dismissed for poor performance without ever receiving a warning or notice to improve; 

– The employee was dismissed while still recovering from a work injury or illness;

– The employee was forced to resign by the employer.

In Australia there is also the situation where many people are only casual employees — so if these employees are unfairly dismissed, can they apply to Fair Work?

Note that a casual employee’s employment must meet the following conditions before they can be compensated for unfair dismissal:

– The employment was regular and systematic;

– There was a reasonable expectation of continuing employment.

Fair Work will therefore look objectively at the type and frequency of a casual’s work — for example, it will consider whether the engagement:

– Was offered only when the casual was available;

– Had been accepted by the employee;

– Depended on other factors, such as another employee being sick or otherwise unable to work.

So, based on a casual employee’s actual pattern of work, Fair Work can decide whether the casual is entitled to bring a claim. However, Fair Work also has to be satisfied that the employee meets the other eligibility criteria — for example, that they were “dismissed” and have met the minimum period of employment.

For employers, if you’re considering dismissing a casual employee, you should first check the working pattern between you and that employee. Consider whether, if you suddenly terminate the employment without a reasonable justification, the employee could bring an unfair dismissal application. If you do need to dismiss a casual, the employer should make sure to provide:

– A valid reason;

– Time for the employee to respond;

– The opportunity for the employee to have a support person present in any discussions.

In addition, the employee must:

– Lodge the application within 21 days of being dismissed;

– Be covered by Australia’s national workplace relations system;

– Meet the eligibility requirements — for example, the minimum 6-month or 12-month service requirement mentioned above;

– Earn below the high income threshold of AUD 153,600.

The general complaint process

From the date of dismissal, an employee has only 21 days to lodge an unfair dismissal application with Fair Work. It is advisable to have a lawyer assist in preparing the application.

Applications can be lodged by email, online, by post, by fax, or in person at a Fair Work Commission state or territory office. The application must be served on the other party / the other party’s legal representative by express post, registered mail, or email.

What remedies are available for unfair dismissal?

If the parties to an unfair dismissal case reach a settlement, the remedy is whatever is set out in the settlement agreement they reach.

If the parties cannot reach a settlement, the case proceeds to hearing, and if the dismissal is found at hearing to be unfair, the possible remedies are:

1. Reinstatement;

2. Compensation for lost wages (capped at no more than 26 weeks’ pay).

Reaching a settlement through conciliation

If you choose to take part in conciliation, a conciliator will bring the employee and employer together to discuss the matter and try to reach a settlement. Most unfair dismissal cases are resolved through conciliation.

A settlement agreement may include:

1. Reinstatement;

2. Continuity of employment (i.e. being restored as if the dismissal had never happened);

3. Financial compensation or damages (for example, lost wages or compensation);

4. A statement of service (stating how long the employee worked for the employer and what they did);

5. Payment of any other entitlements owed;

6. An apology;

7. A non-disparagement agreement (neither party may speak ill of the other).

Obtaining relief through a hearing

If the application is not resolved at conciliation, the case will go to hearing.

The member hearing the case will consider the relevant factors. If satisfied that the employee was unfairly dismissed, they may order:

Reinstatement (getting the job back), together with continuity of service and lost wages, taking into account income the employee may have earned; or

Compensation for lost wages (capped at 26 weeks’ pay, and excluding compensation for shock, distress or humiliation suffered by the employee).

Finally

Many Chinese workers in Australia may face “unfair dismissal” by their employer — being suddenly told they’ve been dismissed without any fair reason. Because of language or cultural barriers, many choose to endure it in silence, or simply don’t know how to stand up for their rights. In Australia, employees’ rights are protected, and when something like this happens it’s best to consult a lawyer so that your interests are protected to the fullest extent.