Termination of Employment and the Unfair Dismissal Regime

Since the implementation of the national workplace relations system by way of the Fair Work Act 2009, many employers have struggled to manage their changing business requirements and still ensure fair treatment for all employees, within the limits of the legislation.

If an employee believes they have been unfairly dismissed, they can easily (and inexpensively) make an application for an unfair dismissal remedy with the Fair Work Commission, within 21 days of a dismissal taking place. In most cases, each party meets their own costs, including legal fees.

An unfair dismissal occurs when the Fair Work Commission finds that:

  • the dismissal was harsh, unjust or unreasonable, and
  • the dismissal was not a case of genuine redundancy, and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business (less than 15 employees).

Small business employees cannot bring a claim for unfair dismissal within the first 12 months of employment in any event, with employees of larger companies needing to be employed for just 6 months to be eligible to claim.

Statistics provided by the Fairwork Commission in March 2013 show that in the 7 months from 1 July 2012 to 31 January 2013, 81% of the 6,077 disputes brought before the Commission by employees settled at conciliation, with 75% of those settlements involving a payment to the employee. Obviously the preferred course of action is to avoid disputes in the first place, by providing clear policies and procedures to employees, to ensure all aspects of the employment relationship from initial engagement to final termination are transparent and fair.

Termination of employment is fraught with legal issues and ‘grey’ areas, and as a result numerous employers now choose to outsource their HR requirements to specialist companies and law firms to lighten the business load.

To ensure you understand your responsibilities, or to discuss any aspect of business or personal law, contact Julia Adlem or Alisha Thompson at Pace Lawyers on (08) 8410 9494.

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Julia Adlem

Associate Lawyer