From 27th March 2006, only employees employed by organisations which have over 100 employees are entitled to lodge a claim for unfair dismissal. These changes arise from the Commonwealth government's "Workchoices" legislation.

However employees from all sized organisations are still entitled to lodge a claim for unlawful termination, a much narrower concept. See section below on unlawful termination.

Termination/dismissal is a very complex area.

The following is a summary only - email us with your specific circumstances for detailed assessment of your situation.

1. Unfair dismissal

Application can only be made by a dismissed employee if

• the employer employs over 100 employees and
• the dismissed employee has been employed for more than six months qualifying period and
• the employee earns less than $94,900 (adjusted periodically).

An employer may terminate an employee's employment if there is a

• valid reason
and if a
• proper procedure
is followed.

A valid reason means a reason

• related to the worker's conduct or capacity or
• an operational requirement of the business.

A proper procedure means that the employer has used fair criteria in selecting who is to be terminated, and

• where employee conduct is the reason for termination, has notified the employee of the reason and given the employee an opportunity to respond to any reason related to capacity or conduct;
• where unsatisfactory performance is the reason, the employee has been given clear warning, training (if appropriate) and an opportunity to improve performance.

An operational requirement could include, for example, a downturn in work, or a decision to close a branch office, etc. The exact meaning of the term has been considered by the Industrial Relations Commission. It found that the term gives employers quite wide discretion regarding termination of an employee. For example, there is no obligation to redeploy a person, even if they have suitable skills, etc.  The "Workchoices" legislation says

2. Unlawful termination

Applies regardless of the number of employees employed by an organisation.

An employer must not terminate an employee for the following reasons, or reasons which include any of:

• temporary absence due to illness or injury or parental leave
• union membership or non-membership, participating in union activities
• seeking office as a representative of employees or as a union official
• filing a complaint or being involved in a case against an employer
• race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
• refusing to negotiate, sign, extend or vary an Australian Workplace Agreement, or because the agreement does not meet the Fairness Test introduced on 7/5/2007 (see Agreements)
  
• absence on maternity or parental leave
• temporary absence while carrying out voluntary emergency management activity.

Assistance with legal costs to a maximum of $4,000 may be available to persons who believe they have been unlawfully terminated, provided the employee's income is less than $47,745 pa (adjusted every two years).

A claim in relation to both alleged unfair dismissal or unlawful termination must be filed within 21 days of termination.

For a small fee - as little as $44 - Working Today can help you to understand your specific situation. Use our online response form, or write us a letter at PO Box 207 Fitzroy Victoria 3065.

NOTICE
Notice must be given if the employer terminates an employee. The minimum length of notice depends on how long the employment has lasted.

The employer may choose to pay in lieu of notice. The payment must include all allowances, etc, that would have been received for ordinary hours worked. (In some circumstances an employee may also be entitled to a redundancy payment - see Redundancy.)

An employee under most Awards must usually give notice equal to the above amount (but without the extra week for those over 45). If an employee doesn't give the required notice, the employer may withhold money from any pay owing to the employee.

Working Today can assist you to ascertain your situation. Write to us at the address below, or email us.