What is Unfair Dismissal?

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission decides on cases of unfair dismissal.

If you wish to apply for unfair dismissal, employees have to apply to the Commission within 21 days of the dismissal taking effect which starts the day after the dismissal.

If you think you have been unfairly dismissed, it’s important that you contact the Commission as soon as possible.

Remember;

  • Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
  • Employees working for a small business have to be employed for at least 12 months before they can apply.
  • If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
  • The Fair Work Commission have a quiz online to see if you can apply for unfair dismissal.
  • Small business employers have different rules for dismissal.

 

Probation Periods and Unfair Dismissal

A probationary period in employment is a set period of time that employers can put their employees on to decide if they’re suitable for the role and business.

The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment. As the minimum period of employment after which an employee can make an unfair dismissal claim is 6 months, it’s not recommended that an employer has a probationary period that’s longer than 6 months.

While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.

 

If hired on a full-time or part-time basis, an employee on probation is entitled to:

  • Accrue and access their paid leave entitlements such as annual leave and sick leave.

 

If an employee doesn’t pass their probation, they are still entitled to:

  • Receive notice when employment ends
  • Have their unused accumulated annual leave hours paid out

 

Probationary periods are usually included in employment contracts. If an employer wishes to extend a probation period this needs to be agreed upon by the employee.

Remember – while you’re entitled to dismiss an employee during a probationary period if they’re not performing as expected, you can’t dismiss them for an unlawful reason.

Fairwork have downloadable templates on their website to help manage an employee’s probation period.

Head here for more information.

Unfair Dismissal When Your Employer Goes Into Liquidation

What happens when you are unfairly dismissed by an employer going into liquidation?

Remember; company liquidation is when a registered liquidator takes control of an insolvent company.

The Fair Work Commission recently dealt with a case of unfair dismissal when an employer goes into liquidation.

Workers Malimage Perera and Dilrukshi Rose, filed an application alleging that they were unfairly dismissed from their employment with Blend and Pack Pty Ltd.

On 24th October 2023, the administrators advised the Commission that they did not propose to defend the unfair dismissal applications and confirmed that the company was not in liquidation. However, the workers both produced letters at a FWC hearing on 15th November 2023 from the administrators stating that a resolution of creditors had determined to place the company into voluntary liquidation as of 8th November.

As their employer went into liquidation, the FWC was unable to proceed with the unfair dismissal claims without a court order allowing them to do so. Because the FWC is not a court, it can’t grant leave for the proceedings.

The FWC did find that the dismissals were unfair and would have concluded so if the applications were able to continue.

 

Correct Protocols

When an employee is dismissed from their job, it’s important that an employer follows the correct protocols for employment termination.

If an employer’s legal obligations are not fulfilled, this increases the risk of the employee bringing an unlawful dismissal claim against the employer.

Unlawful dismissal claims can include;

  • Unfair Dismissal
  • Adverse Action
  • Breach of Contract
  • Wrongful Dismissal/Termination

At Litton Legal we’re experts in Employment Law. If you need assistance with an Unfair Dismissal claim, contact our office here.