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What is Unfair Dismissal?
If
you have been dismissed from your employment in circumstances that were
harsh, unjust or unreasonable you may be able to bring a claim for
unfair dismissal.
A consideration of whether a dismissal was harsh, unjust or unreasonable includes the following:
- whether
there was a valid reason for the dismissal related to the person's
capacity or conduct (including its effect on the safety and welfare of
other employees), and
- whether the person was notified of that reason, and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
- any
unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to
dismissal, and
- if
the dismissal related to unsatisfactory performance by the person
whether the person had been warned about that unsatisfactory
performance before the dismissal, and
- the
degree to which the size of the employer's enterprise would be likely
to impact on the procedures followed in effecting the dismissal, and
- the
degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on
the procedures followed in effecting the dismissal.
Which System Applies to Me?
In Queensland there are 2 concurrent systems that apply to unfair dismissal claims. The
State based system is governed by the Queensland Industrial Relations
Commission and the National system is governed by Fair Work Australia
(formerly the Australian Industrial Relations Commission).
If you are not covered by the national system you will be covered by the State based system.
The National system covers those employees: - employed by a constitutional corporation (including Pty Ltd companies)
- employed in Victoria, the Northern Territory or ACT
- employed by the Commonwealth or a Commonwealth authority
- who are waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce.
The State based system generally applies to: - state government employees
- local government employees
- employees of partnerships or sole traders
You will not be eligible to pursue a claim if you are one of the following: - an
employee who earns more than $106,400 (if you earn more than this
amount you may be able to pursue a claim for unlawful termination);
- contractors;
- employees within their first period of probation;
- employees who resign and were not forced to do so by the conduct of their employer;
- those
employed under a contract for a specified period of time, a specified
task, or the duration of a specified season who are dismissed at the
end of the period, task or season;
- trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement;
- employees
who have been demoted but have had no significant reduction in their
remuneration or duties and who remain employed by the employer who
demoted them.
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