In general terms, dismissal from employment is unfair if it:
• Is harsh, unjust or unreasonable;
• Is for an invalid reason.

What constitutes “harsh, unjust or unreasonable” and “invalid reasons” is reasonably defined by both the Industrial Relations Act and the Common Law.

In the case of Federal awards, or Federal employees, applications should generally be made to the Commonwealth Industrial Relations Commission. If otherwise the State jurisdiction will apply (in Queensland, the Queensland Industrial Relations Commission).

Certain classes of employees may be excluded from unfair dismissal provisions under the Industrial Relations Act.

Applications in respect to dismissals which are considered by an employee to have been unfair should be lodged within 21 days of the date of termination. Under some circumstances, extensions may be granted.

What remedies are available?
Generally speaking, a Commission who considers that dismissal has been unfair can make orders that:
(a) the employee be reinstated to the position they held immediately prior to dismissal; or
(b) the employee be re-employed in another position that is available and which is considered by the Commission to be suitable; or
(c) may compensate the employee if reinstatement/re-employment is not practical. However, a maximum of 26 weeks wages are payable in such case.

What other issues may arise?
There are many issues that impact upon dismissal. Some of these include:
• Misconduct:
In certain circumstances where the misconduct of an employee is sufficiently serious, it may be considered reasonable for an employer to immediately terminate the employment of such employee. This may give rise to “summary dismissal”.

• Summary Dismissal:
Takes place where an employer dismisses an employee without prior notice. Such dismissal “on the spot” is taken with no allowance or payment in lieu of such notice. This form of dismissal is only permissible where the misconduct is of a serious nature. Each such allegation must be investigated and determined in the circumstances of the case.

• Redundancy:
Occurs in circumstances where an employer makes a decision that an employee’s job is no longer required. There can be reasons such as restructuring of the work place; an inability to fund such employment because of financial circumstances; and sale of part or all of the business.

Depending on the relevant award and/or the circumstances, there may be an obligation on the part of the employer to give a further period of notice in addition to ordinary periods of notice, or payment in lieu thereof. As well, there may be provisions dependant on the employee’s age and period of continuous employment which affect the calculation of such notice/payment periods.

• Other types of engagement:
Apprentices/Trainees/persons on fixed term contracts are usually not entitled to all of the provisions relevant to dismissal under the Industrial Relations legislation.

• Frustration:
This may occur in circumstances for instance where it is simply not possible for the employment contract to continue. Such circumstances would include examples where a company’s business premises was totally destroyed by fire or flood; where an employee or employer died; and where an employee is injured to the extent that employment can no longer practically continue.

• Constructive dismissal:
Dismissal of this kind usually occurs where an employee has no alternative but to resign. By way of example, constructive dismissal might occur where an employee was provided with conditions of employment which were vastly less than or less favourable than the existing employment contract provided. Similarly, where an employer failed to prevent a safe work environment or made the employees ongoing work conditions intolerable to the extent that it was a reasonable and natural consequence that the employee resigned. In such circumstances, an employee may be entitled to all the same provisions as had the employment contract been more directly terminated by the employer.

Each case is different. You should seek our advice on a timely basis, remembering that applications must generally be made within 21 days of termination. The information provided here is a minimal summary only and you should take more detailed advice from us before acting thereon.