Has your employment been terminated and you are wanting to know whether you’ve been unfairly dismissed? Unfair dismissal is the phrase often used in the workplace, however most individuals don’t exactly know what unfair dismissal really entails.
To clear out any possible confusion, let’s examine the different types of employment termination. One can’t be blamed for thinking that every time an employee is terminated, it is an unlawful termination. To better understand unfair dismissal, here are the terms and definitions and some of the causes and scenarios when an employee is terminated.
Termination of employment
From 1st January, 2010, the National Employment Standards (NES), replaced the non pay rate provisions of the Australian Fair Pay and Conditions Standards (this was known as ‘the standard’). With the introduction of NES, the laws related to redundancy including the redundancy payout, have changed. NES now encompass notice period when a worker is dismissed.
What all this means is that it is legal for an employer to dismiss an employee, proceed with the ‘termination of employment’ if:
– It is due to a genuine redundancy; this means that the position has been made redundant, i.e. no longer needed within the company or
– Termination of employment is not considered harsh, unjust or unreasonable or
– Dismissal falls under the Small Business Fair Dismissal Code; This basically is valid for businesses with 15 of fewer employees.
Whenever an employment is terminated, the company is obliged to comply with the notice period. Notice period is part of NES and its amount depends on the period of continuous service. The scale is as follows:
– 1 week if employed for under 12 months,
– 2 weeks for duration of employment of between 1 and 3 years,
– 3 weeks if employed for the duration of between 3 and 5 years and
– 4 weeks if the period of continuous service was 5 years or more.
What is redundancy?
Under National Employment Standards (NES), redundancy can happen when an employer either:
– employer decides that they don’t need an worker’s job to be done by anyone else and terminates their employment or
– employer declares bankruptcy or becomes insolvent.
Possible redundancy scenarios include:
– There is a merger, acquisition or takeover of the company
– The business has restructured and reorganised the operation and no longer requires the position
– The company relocates
– Business output is reduced due to lower sales, market condition or any other reason
– The job an individual has been doing is replaced due to the employer introducing new technology or new work processes. Example of this is that the particular duty can be done by a computer or another machine.
Unlawful Termination
The definition of unlawful termination is when a worker’s employment is terminated for a discriminatory reason or any other reason that is against the current employment laws. Luckily, there are protections in place for employees who have been unlawfully terminated.
So what is unfair dismissal?
Unfair dismissal is when the employee has been terminated and it is not due to the genuine redundancy and Fair Work Australia (FWA) finds that the dismissal had been harsh, unjust or otherwise unreasonable.