What to Know About Unfair Dismissal Laws in Queensland
In Australia, employees have two options when challenging a termination. First, a worker can start a common-law action in an eligible court if there had been a breach of contract. Second, he can make a statutory claim for unfair dismissal.
The State Industrial Commissions is an example of a governing body that can hear the second type of claim, which is the quicker, more cost-effective option for many workers. Here are things to discuss with your solicitor regarding unfair dismissal claims under the Fair Work Act 2009.
Who can make an unfair dismissal claim?
Employees of private enterprises and Commonwealth authorities like mining and resources companies, private hospitals, the Australian Tax Office or the Australian Federal Police are all eligible to make this type of claim. State and local government employees, meanwhile, like those at the Queensland Health or the Queensland Police Service cannot lodge unfair dismissal claims.
In addition to being an employee of an eligible authority or enterprise, the complainant must have completed the minimum period of employment of six months. For small business employers, the minimum is 12 months. Also, the employee should be covered by a modern award, enterprise agreement, or earn less than $148,700 per year. Casual employees and those who had been significantly demoted or forced to resign are also eligible to make this type of claim.
What is the definition of ‘dismissal?’
In Queensland law, a dismissal occurs if the termination was at the employer’s initiative, or if the worker was ‘forced’ to resign because of the employer’s conduct. Pressuring an employee to quit is an example of the latter. An unjust reduction of their remuneration or duties is also covered. Aside from this, the employer should also clearly communicate the dismissal, which means an oral or written notice of termination.
What counts as unfair dismissal?
All dismissals are different, and the Commonwealth will consider the circumstances of each case before deciding. Typical factors for determining harshness, injustice, or unreasonableness include evaluating if the reason for dismissal is related to the employee’s conduct or capacity. For example, assaulting a co-worker, accessing a co-worker’s files without permission, leaking confidential documents of the company, or misappropriation of funds are all valid grounds for termination.
The denial of procedural fairness is also a reason to contest the termination. If the employee was not notified of the valid reason or was not allowed to respond or defend himself, there could be unfair dismissal. Lack of previous warnings is also a reason to protest. Consult a Queensland solicitor to know other valid reasons for contesting a termination.
What happens if the FWC decides there was unfair dismissal?
The FWC can order reinstatement, and the employee should get the same position or another, which is no less favourable than their previous one. They are also entitled to compensation for lost wages. If there is a breakdown of trust in the employer-employee relationship, the body can decide on just payment.
This compensation is limited to the income the employee lost because of the dismissal. For example, if they were unemployed for two weeks and got a new job with equal or better pay, the damages paid will be for two weeks only. The FWC has discretionary power to decide on awarding compensation; not all successful unfair dismissal claims get monetary remuneration.
Other things to remember
For national system employees, you should make unfair dismissal applications with the FWC. For non-national system employees who work in Queensland, you can lodge your complaint application with the territory’s Industrial Relations Commission. Keep in mind that applications must take place within 21 days of the effectiveness date of the dismissal.
Conclusion
With issues like unfair dismissal, it is necessary to act quickly. Consulting an expert in employment law will enable you to find the best course of action. Make sure you get a professional well-versed in laws governing your territory.
For legal representation in Queensland, get in touch with Springfield Legals today. We are Springfield and Ipswich solicitors who have been at the forefront of local, solutions-based legal advice since 1999, and we have handled unfair dismissal claims for hundreds of individuals. Contact us today for more information!