Dismissal and termination
Many industrial instruments (awards and agreements) contain
provisions relating to the termination of employment. There are
also termination of employment provisions in Commonwealth and state
or territory workplace relations legislation.
There are several different aspects of dismissal and termination
to consider, including:
Redundancy
Redundancy is when employment is terminated because the employer
no longer needs the job in question to be performed. Many
industrial instruments prescribe minimum notice periods and minimum
severance payments for employees who are made redundant—these
vary depending on the employee’s length of service.
Commonwealth legislation also contains minimum notice periods for
termination of employment by an employer.
Poor work performance
Poor work performance includes (but is not limited to) a poor
attitude towards co-workers and the public, failure to complete
tasks in a realistic timeframe, failure to meet agreed goals or
outcomes or an aversion towards learning new skills.
Each employer has a different approach to dealing with employees
they perceive to be poor performers. Some industrial instruments
set out the procedure an employer must follow when dealing with
staff members who are not performing to the required standard.
Generally, employers must discuss the issue with the employee
and set out a procedure for corrective action, which may include
training to improve the employee’s performance.
Usually it is only after this step has been taken, and the
employee is still found to be below accepted standards, that the
employer will move towards termination.
Serious misconduct
Serious misconduct includes (but is not limited to) theft,
assault, taking illegal drugs, intoxication during working hours,
refusal to carry out reasonable instructions, and anti-social
behaviour threatening the health and safety of a person, or the
reputation or viability of the employer.
When serious misconduct is proven, the employer may dismiss the
employee without notice.
Notice requirements
It is unlawful for an employer to terminate a person’s
employment without giving the employee concerned a minimum period
of notice of termination established by federal law (or relevant
industrial instrument), or pay in lieu of notice.
However, notice (or pay in lieu of notice) is not required in
cases of serious misconduct.
Depending on the relevant law or industrial instrument, other
categories of employees may also be excluded from the minimum
notice periods.
Unlawful termination
Under Commonwealth legislation it is unlawful to terminate a
person’s employment for the following reasons, or to include
one of these reasons as a basis for termination:
- temporary absence from work because of illness or injury
- trade union membership or participation in trade union
activities
- non-membership of a trade union
- seeking office as, or acting as, a representative of
employees
- filing a complaint, or participating in proceedings, against an
employer, involving alleged breaches of legislation
- race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family responsibilities, pregnancy,
religion, political opinion, national extraction, or social origin.
However, it is not unlawful to terminate an employee for one of
those reasons if the reason is based on the inherent requirements
of the job, or if the discrimination is against a member of staff
of a religious institution and it is done in good faith and because
of the teaching or belief requirements of that institution.
- refusing to negotiate, sign, vary or terminate an Australian
workplace agreement
- being absent from work on maternity leave or other parental
leave
- temporary absence from work to participate in voluntary
emergency management activities.
Unfair dismissal
An unfair dismissal occurs when an employee’s termination
is ‘harsh, unjust or unreasonable’. In determining
whether this has been the case, a number of factors are taken into
account, including:
- whether there was a valid reason for the termination
- whether the employee was notified of that reason and given an
opportunity to respond
- if the termination related to unsatisfactory performance by the
employee, whether the employee had previously been warned about
that unsatisfactory performance
- the degree to which the size of the employer’s business,
or the absence of dedicated human resource management specialists,
may have had an impact on the termination procedures
- any other relevant matters.
What you can do about unfair or
unlawful dismissal
If you believe you have been unfairly or unlawfully dismissed,
you generally have 21 days to make an application; however, in some
states the time limit is 28 days.
Where you make your application (that is, to the Australian
Industrial Relations Commission or a relevant state industrial
tribunal) will depend on the type of claim you are making and
whether you are covered by federal or state workplace relations
laws.
The most common remedies for unfair or unlawful termination of
employment are reinstatement in employment and compensation.
Under the federal system, all employees are excluded from making
a claim for unfair dismissal during the qualifying period of
employment—generally the first six months of employment.
Before a person starts work, an employee and employer can agree, in
writing, to a shorter qualifying period of employment or a longer
period provided the longer period is reasonable having regard to
the nature and circumstances of the employment.
The following employees are excluded from unfair dismissal
laws:
- employees not employed under award-derived conditions and
earning more than $98,200 (total remuneration package). This amount
is indexed and varied on 1 July each year.
- employees serving a probationary period, where the period is
determined in advance and the maximum duration of the period is
three months or less, or is more than three months and is
reasonable considering the nature and circumstances of the
employment
- casual employees engaged by a particular employer for a period
of less than twelve months
- trainees employed under approved traineeship agreements, where
the employment is limited to the duration of the traineeships
- seasonal employees
- employees employed for a specified period or task
- employees terminated on the basis of operational requirements,
or on grounds that include this reason
- employees of employers who have 100 or fewer employees at the
time of dismissal.
For further information on the laws relating to unfair
dismissal, visit the
WorkChoices website or
Youth Central.
For information on the role of the Industrial Relations
Commission, visit the Australian
Industrial Relations Commission website.
