Termination of Employment
With the exception of people who are employed by the State Government, all employers and their employees in New South Wales are now covered by the (Commonwealth) Fair Work Act as the law applies to claims for relief for unfair dismissal or unlawful termination.
1. Unfair Dismissal
An employee is entitled to challenge the termination of his or her employment before Fair Work Australia on the basis that that termination of employment was harsh, unjust or unreasonable.
There are minimum qualifying periods for an employee to bring an unfair dismissal claim as follows:-
(a) If the employer has more than 15 employees, then the employee must have been employed for a period of at least 6 months;
(b) If the employer has 15 employees or less (and is thus defined as a “small business employer”) the minimum qualifying period of employment for bringing an unfair dismissal claim is 12 months.
A claim for unfair dismissal must be lodged with Fair Work Australia within 14 days after the dismissal took effect.
The remedies for unfair dismissal are reinstatement to the employer’s former position or re-employment to a position no less favourable for an employee or up to 26 weeks pay by way of compensation.
There is a bar on employees bringing an unfair dismissal claim if prior to their termination of employment that employee had a remuneration package which, as of 1 July 2012, is $123,000.00 per annum. That remuneration package not only includes a base wage or salary but also additional entitlements such as superannuation, the provision of a motor vehicle or regular bonuses.
Employees can also be excluded from bringing an unfair dismissal claim for the following reasons:-
(a) The employee was employed on a fixed term or fixed task contract.
(b) The employee was employed on a casual and irregular basis.
(c) The employee was dismissed as a result of a genuine redundancy (but must then receive a redundancy payment if the employer has over 15 employees).
Once an unfair dismissal claim is lodged, a conciliation conference, usually conducted by telephone, will be conducted by a conciliation officer of Fair Work Australia within a matter of weeks. If the dispute cannot be settled at that Conciliation Conference then a hearing date is set.
2. Unlawful Termination.
Unlike claims for unfair dismissal, there is no qualifying period of employment for claims for unlawful termination of employment. However, unlawful termination of employment is defined in much more concise and narrow terms than unfair dismissal. A claim for unlawful termination can arise from the following circumstances of termination of employment:-
(a) Temporary absence from work because of an illness or injury.
(b) Trade union membership or participation in trade union activities.
(c) Discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(d) The filing of a complaint, or participation in proceedings, against an employer involving alleged violation of laws or regulations.
A claim for unlawful termination can be brought within 60 days of termination of employment. There is also no threshold on the level of remuneration whereby an agreed employee can bring a claim for unlawful termination.