- ACTU Worksite for Schools - http://worksite.actu.org.au -

Unfair dismissal

Unfair dismissal is something nobody wants to experience. To help prevent it, a ‘fair dismissal’ system began on 1 July 2009. This system set out the steps that an employer should go through before giving an employee the sack. The Small Business Fair Dismissal Code [1]

The dismissal system works slightly differently for new employees and people working in small businesses with fewer than 15 employees.

Employees of a small business will not be able to claim for unfair dismissal until after they have been employed for 12 months, while for larger businesses, the minimum employment period is six months.

If you are sacked at work or threatened with the sack, it’s very important that you seek advice from someone who knows about these new laws. Regardless of the size of business or the length of time in the job, you have a right to be treated fairly.

There are some basic ‘rules’ you should know about.

The new code says:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. 

If this happens to you, it’s important to get advice and get help to make sure you get a chance to put your side of the story.

The code also says:

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned either verbally or, preferably in writing, that he or she risks being dismissed if there is no improvement. 

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Keep in mind:

  1. The reason for getting the sack must relate to your conduct or capacity to do the job.
  2. The boss must warn you that you might get the sack if there is no improvement
  3. You must get a chance to improve – and in some cases this will mean extra training or coaching to do a better job.

The code says that you can be fairly dismissed if there is a business downturn or the position is no longer needed. But this must be genuine – refilling the position with a new employee means it is not a genuine redundancy.

Bring a friend or advisor

The code says

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. 

This is very clear. If you could be sacked, you are entitled to have another person assist you. If you are a union member, this could be the union rep or union official. It could be a family member or more experienced friend. But be sure that they understand the fair dismissal code!