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by Costa Brehas

This article briefly outlines the protections that Australian Federal Law provides to certain employees who are unfairly dismissed. It is the second part in a series of three articles dealing with Australian job protections and entitlements.

Unfair dismissal

Currently, employees in the Federal System (i.e. all employees in Victoria, NT and ACT as well as employees employed by constitutional corporations in NSW, QLD, TAS, WA and SA), who have been unfairly dismissed, may lodge an application with the Australian Industrial Relations Commission (“AIRC”) for reinstatement and/or compensation in respect of lost earnings.

In order to be able to bring an unfair dismissal application the terms and conditions of these employees' employment must be determined by an Award/Workplace Agreement or their remuneration must be below a specific threshold ($106,400.00).

This application must be made within 21 days after termination. Certain employees, however, such as short term casuals, fixed term employees and trainees are excluded from bringing this application. Employers can prevent unfair dismissal claims from proceeding further if they can establish that they have fewer than 100 employees or if the grounds for the dismissal are based on “genuine operational reasons”.

Proceedings out of the Australian Industrial Relations Commission are relatively informal and cost effective in that legal costs can not usually be recovered (except in certain exceptional circumstances).

If the Commission decides that an employee was unfairly dismissed, it will usually try to reinstate that employee to his/her former role and if this is not possible, it may award compensation in respect of lost wages up to a maximum of six months' wages. Sometimes it will order both reinstatement and compensation.

Unfair dismissal changes from 1 July 2009

Under the Rudd Government's Fair Work Bill, which is expected to be passed within the next month or two, various changes to the existing unfair dismissal laws are expected to come into effect from 1 July 2009 including the following:

» Businesses will no longer be able to rely on the fact that they have fewer than 100 employees to prevent unfair dismissal claims from being brought against them.

» Employers with fewer than 15 employees (“small businesses”) will be able to fairly dismiss employees if they comply with a “Small Business Fair Dismissal Code”. The content of this Code is not yet known.

» Employees will now have only seven days from the date of termination to commence an unfair dismissal claim.

» Before being able to bring an unfair dismissal claim, an employee must have been employed for at least six months (or, if the employee works for a “small business”, 12 months) and must be governed by an Award or a Workplace Agreement or earn less than $100,000.00 p.a. (indexed each year).
The third and final part of this article in next month's issue will discuss legal protections available to employees in Australia who have been terminated on discriminatory grounds.

By Costa Brehas (B. Proc – University of the Witwatersrand, South Africa. Costa practised as an attorney and conveyancer in South Africa and is currently engaged as a Senior Associate in the Employment and Workplace Relations department of Hunt & Hunt which has a national presence throughout Australia.

Disclaimer: The information contained in this article is not legal advice and should not be relied upon as legal advice.

Posted in business |
Posted by Costa Brehas
22 Apr 2009

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