What is Unfair Dismissal and the relevant Legislation
Dismissal is when an employer terminates the employment of an employee. An employer is able to terminate employment:
‘expressly’ i.e. by notifying the employee of their last days of employment; or
‘Constructively’ by doing something that is inconsistent with ongoing employment.
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
Unfair dismissal can also result from an employee “voluntarily” resigning. This may happen if an Employer tells an employee that they can either resign or be dismissed or refusing to pay overtime when it is an entitlement.
Employer’s Minimum Obligations
Employers are required to comply with minimum standards when dismissing an employee.
It is important to understand that each Industry awards, statutory enterprise agreements, employment contracts and state industrial relations legislation may provide notice provisions that vary from the minimum statutory entitlements.
Employees are entitled to a minimum period of notice. The minimum notice period depends on your length of service, your age, seniority and level of responsibilities.
If there has been serious misconduct on the employees’ part, then the employer may dismiss an employee “summarily” – meaning without notice or “on-the-spot”. If this happens, then an employee may not be entitled to notice or payment in lieu of notice.
Alternatives to Dismissal
Not all dismissals are conducted legally. If you believe that your dismissal was unfair, then there are options available for you.
Unfair dismissal law under the Fair Work Act 2009, you may be able to seek reinstatement (to the same position prior to dismissal) or compensation because you have been dismissed unfairly.