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Unfair Dismissal - Your In the Wrong Class?

Date: September 11, 2007

Authors: LAC Lawyers

The unfair dismissal provisions of the Workplace Relations Act 1996[1] (‘WRA’) are buried in the detail of the Act and for an employee to determine whether they have a valid unfair dismissal claim they need to establish if any exclusionary provisions apply to their particular employment circumstances. 

Employee’s whose employment has been terminated by their employer may apply to the Australian Industrial Relations Commission (‘AIRC’) for relief in respect of the termination of the employees employment on the grounds that such a termination of employment was: harsh; unjust or unreasonable . Importantly, it’s not all plain sailing as certain classes of employee are excluded from making claims for unfair dismissal.

The exclusions apply to employees who are:

  • Engaged under a contract of employment for a specified period of time;
  • Engaged under a contract of employment for a specified task;
  • Serving a period of probation;
  • Casual employee engaged for short periods;
  • Trainees employed under a traineeship agreement or an approved traineeship;
  • Employees engaged on a seasonal basis; and
  • Earning over $98,200.00[2] and are not employed under Award conditions.

In addition to the above clauses that relate to particular classes of employees the WRA adds even more ingredients into the exclusionary mix. Employees are excluded for lodging a claim with the AIRC for termination of employment that was: harsh; unjust or unreasonable where:

  • The employee had not completed a qualifying period of employment (which is different again from a probationary period of employment). The qualifying period of employment could be six (6) months; or a shorter period of time or perhaps no period of time at all if determined by written agreement between the employee and employer before the employee commenced employment; or alternatively it could be for a longer period of time which is reasonable in the circumstances if it were agreed to in writing before the employee commenced employment with the employer;
  • The employee’s employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons. Operational reasons in this context may include reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business, or to a part of the employer’s undertaking, establishment, service or business – but it must be genuine;
  • At the relevant time, the employer employed 100 employees or fewer. Calculating the employer head count at the time the employee was terminated is achieved by ensuring that the terminated employee is incorporated into the employers head count; and incorporating casual employees who had been engaged by the employer on a regular and systematic basis for at least twelve (12) months. Importantly casual employee’s who do not fit into this class of casual employee are in essence not incorporated into the employers head count – as such the numbers could be working against you. However one element that may prove advantageous for the employee is the fact that for the purposes of calculating the number of employees employed by an employer, related bodies corporate or entities (within the meaning of section 50 of the Corporations Act 2001) are all taken to be one entity.

If employees are able to successfully navigate their way around a vast array of exclusionary hurdles re: unfair dismissal claims, then and only then will consideration be given to the employee for relief in respect of termination of employment.

In fact for the purposes of arbitration, whether a termination was harsh; unjust; or unreasonable, regard must be had to:

  • Whether there was a valid reason for the termination which related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees);
  • Whether the employee was notified of that reason;
  • Whether the employee was given the opportunity to respond to any reason relating to their capacity or conduct;
  • If the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance prior to termination;
  • The degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination;
  • The degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
  • Any other matters that the AIRC considers relevant.

Employee’s who believe they have been unfairly dismissed need to act without delay as you only have twenty one (21) days[3] in which to lodge an application dealing with unfair dismissal on the basis that your termination of employment was harsh; unjust; or unreasonable – contact LAC Lawyers Pty Ltd on 1300-799-888 for immediate assistance.

For information on unlawful termination of employment claims please refer to the article titled ‘Unlawful Termination of Employment – Where Do You Stand’ located on the LAC Lawyers website.

[1] Workplace Relations Act 1996 (Cth) referred to generally throughout the document.

[2] Australian Government, “WorkChoices and Termination of Employment”, (Australia: Commonwealth of Australia, 12 December 2006), p. 2.

[3] Australian Government, “WorkChoices and Termination of Employment”, (Australia: Commonwealth of Australia, 12 December 2006), p. 2.

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