Certain employees may be able to claim unfair dismissal if:
- they have served the minimum qualifying period; and
- they have been dismissed, in circumstances where the dismissal was harsh, unjust or unreasonable.
The primary remedy for unfair dismissal is reinstatement, but where the relationship between an employer and employee has broken down, an employee may seek compensation.
There is a statutory limit to the amount of compensation an employee can claim and an unfair dismissal application must be brought by an employee within 21 days of their dismissal becoming effective. Generally, Fair Work will not extend the date for compliance (unless there are extenuating circumstances).
Rigorous discipline and termination policies and procedures which comply with the law are essential requirements for employers.
General protections claims (ie adverse action) are designed to:
- protect workplace rights;
- protect freedom of association;
- provide protection from workplace discrimination; and
- provide effective relief for persons discriminated against, victimised or otherwise adversely affected as a result of a contravention of the Fair Work Act.
- The meaning of adverse action depends on whether the action is taken by an employer, prospective employer, principal, employee, independent contractor or union.
For employers and prospective employers it means taking, threatening to take or organising to take the following action:
- dismissing an employee;
- refusing to employ a prospective employee;
- injuring the employee in its employment;
- altering the position of the employee to the employee’s prejudice;
- discriminating between the employee and other employees;
- discriminating against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
For principals and prospective principals it means taking, threatening to take or organising to take the following action:
- terminating a contract;
- injuring the independent contractor in relation to the terms and conditions of the contract;
- altering the position of the contractor to the contractor’s prejudice;
- refusing to make use of the contractor’s services;
- refusing to supply goods or services to the contractor;
- refusing to engage the contractor;
- discriminating against the contractor in the terms or conditions on which the principal offers to engage the contractor.
For employees, it means taking, threatening to take or organising to take the following action:
- ceasing work in the service of the employer; and
- taking industrial action against the employer.
For independent contractors, it means taking, threatening to take or organising to take the following action:
- ceasing work under the contract; and
- taking industrial action against the principal.
For unions, it means taking, threatening to take or organising to take the following action:
- organising or taking industrial action against the person; or
- taking action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment;
- taking action in relation to a contractor that has the effect, directly or indirectly, of prejudicing the contractor in relation to the contractor for services;
- if the person is a member of the union, imposing a penalty, forfeiture or disability of any kind on the member (other than for money owed to the union).
A person charged with adverse action is presumed guilty until they can prove otherwise. Well documented decision making and accurate records are essential tools in defending adverse action claims.
The court has a broad discretion in relation to the orders it issues. These can include orders for uncapped compensation for economic loss and hurt and humiliation.