25-05-10
John Isaksen
Both employers and employees should be aware that there have been some significant changes to unfair dismissal of employment since introduction of the (Commonwealth) Fair Work Act on 1 July 2009.
Who can claim for unfair dismissal?
As was the case under the Workplace Relations Act, an employee of a corporation is entitled to bring a claim for unfair dismissal subject to certain qualifications (which are referred to below). However, claims for unfair dismissal that are made to Fair Work Australia now extend to employees of a sole trader or partnership as of 1 January 2010 because these employers move into the National Fair Work System.
Restrictions on claiming for unfair dismissal
Where an employer has more than 15 employees, no claim can be brought for unfair dismissal unless the aggrieved employee has been employed for at least 6 months.
Where an employer has 15 employees or less (and is thus defined as a “small business employer”) the minimum qualifying period for bringing a claim for unfair dismissal is 12 months of employment with that employer.
There is also a bar to an employee bringing a claim for unfair dismissal if the employee has a remuneration package of over $108,300.00 per annum.
An aggrieved employee is also excluded from bringing an unfair dismissal claim if:
- The employee was employed on a fixed term or fixed task contract.
- The employee was employed on a casual and irregular basis (note that a casual employee employed on a regular and systematic basis is entitled to bring a claim for unfair dismissal).
- Genuine redundancy.
Time limits for bringing unfair dismissal claims
If an employee wishes to lodge a claim for unfair dismissal with Fair Work Australia, that must be done so within 14 days of the termination of that employee’s employment. That is a change from the previous Workplace Relations Act which allowed an aggrieved employee to bring a claim for unfair dismissal within 21 days of termination of employment.
Remedies for unfair dismissal
The primary remedy for unfair dismissal remains reinstatement but if that is not possible, then up to 6 months remuneration by way of compensation.
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