By Anne Lampe
Money magazine, December edition
Anne Lampe tells you what to do if you’re suddenly sacked
After three years in my job I’ve been sacked without being given a reason. Can this happen today under “fair work” legislation and what can I do to get redress?
You can be unfairly dismissed or unlawfully terminated. It sounds like the same thing and is a cute play on words to some extent, but the latter is more serious and is easier to prove under Fair Work Australia regulations.
What is the difference?
Unfair dismissal happens when you lose your job and there is no genuine redundancy and no change in operational requirements of the business. You have just been sacked without a reason or a chance to rectify what your employer reckons is a shortcoming in your performance.
Unlawful termination is the more serious form of termination, covering sacking for factors such as race, sex, age, sexual preference, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion or your political opinions.
It also covers sacking due to temporary absence from work as a result of injury or illness, union membership, absence due to maternity or parental leave, leave due to engagement in emergency management activity, or because you filed a complaint against your employer.
If you feel you have been sacked due to any of these situations, you have 60 days to make an application to Fair Work Australia for a conference or hearing on your claim for unlawful termination.
Remedies that can be applied include your reinstatement, the employer finding you an equivalently paid and senior position, or compensation. The employer also faces a fine if found to have unlawfully terminated you.
If you have been unfairly dismissed for other than the above unlawful situations, you have 14 days to apply to Fair Work Australia for mediation. Taking longer than 14 days to lodge an application can mean your application for a conference or conciliation won’t be accepted. So you need to move quickly.
What makes a dismissal unfair?
Harsh and unreasonable sacking which is not a result of redundancy or you were dismissed in a way that is not consistent with the Small Business Fair Dismissal Code.
An application made within 14 days entitles you to a private conference, conciliation or mediation with your employer to sort out the matter. If the dispute remains unresolved you may apply to a court for a hearing, and Fair Work Australia has to inform you if you don’t have a reasonable chance of success. If you proceed to a court hearing you can represent yourself or have representation but you will not have to pay the employer’s legal costs.
The flaw in the law is that there is no legal requirement for your employer to give you warning that you are to be sacked before it occurs. However, FWA may consider whether you were given a chance to fix their behaviour or performance shortcoming when deciding whether your termination was fair or unfair. Fair Work Australia would expect that you were given a valid reason for your dismissal, that you were notified of that reason and given an opportunity to respond to your employer’s complaint, and that if your performance was unsatisfactory you were warned about it before being sacked.
Employers subject to the Small Business Fair Dismissal Code may be required to provide evidence that they complied with the code. A copy of the code can be found on the Fair Work Australia website.
Best practice required under the code includes that the employer provide you with sufficient warning (although it does not specify how it should be delivered) and provides adequate time and support to address any concerns about your performance.
Only in serious cases of misconduct are these steps not expected by FWA.
Do the provisions apply if I am a contractor?
No. Because you are not an employee. But early termination may constitute breach of contract. Nor are you covered if you haven’t completed the 12-month qualifying period if with a small company (defined as having 15 employees or fewer on a head count basis) or six months for large companies, if you earn over $108,300 a year, if you have been employed for a specific task or fixed term, now finished, if you are a subject to a training agreement whose employment is limited to the duration of that agreement, and where there is a genuine redundancy.
However, being on an individual employment contract does not make you ineligible to apply for unfair dismissal.
What is a genuine redundancy?
It is when your job no longer exists. It has either been done away with as a result of technological changes, merger, or a division closing down, or because your work has been outsourced.
Good employers usually try to find another position for you in such circumstances, but the employer has the right to tell you that your job is terminated.
How do I complain?
Log on to Fair Work Australia at www.fairwork.gov.au and click on how to lodge a complaint link.
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