UNFAIR DISMISSAL

Unfair dismissal is a Fair Work Commission or Industrial Relations Commission application that deals with dismissals that are harsh, unjust or unreasonable and are not a case of genuine redundancy.

A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. A person has been dismissed if:

• a person’s employment has been terminated at the employer’s initiative; or
• a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

A dismissal does NOT include where:

• a person has been demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer;
• a person was formerly employed under a contract for a specified period of time, specified task or for the duration of a specified season and the employment comes to an end at the end of that period; or
• a person had a training arrangement with their employer which detailed:
  • that the employment was limited to the duration of the training arrangement; and
  • whose employment ends at the end of that training arrangement.

These applications originate in the Commission and must be filed within 21 days of the date your dismissal takes effect.

Orders can be made to the effect of reinstatement, maintaining continuity of employment, restoring lost pay or compensation.  

GENERAL PROTECTIONS

General protections are another kind of Fair Work Commission or Industrial Relations Commission application that deals with adverse action taken against an employee for asserting a workplace right. This workplace right may include taking leave, making a complaint, or asserting any right under the National Employment Standards.

The principal general protections can be divided into:

• general protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements);
• people engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association);
• other curtained protections including protection from discrimination, temporary illness or injury, coercion, bargaining services fees; and
• sham arrangements.

The general protections have been introduced to:

• protect workplace rights;
• protect freedom of association;
• provide protection from workplace discrimination; and
• provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

These applications must be lodged within 21 days of dismissal for applications involving dismissal.

If you have resigned or are still employed, there is a 6-year limitation period on bringing proceedings for an adverse action.

For general protections, you can claim damages for hurt and humiliation, as well as the end of your contract, and other damages.

BULLYING

An application for bullying can be made to the Fair Work Commission for continued targeted bullying conduct from your employer. However, to bring a bullying claim, you must still be employed.

Workplace bullying occurs when:

• an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work, and
• the behaviour creates a risk to health and safety

A worker is bullied whilst they are at work if a person, or a number of people, display repeated unreasonable behaviour towards them which creates a risk to health and safety.

For bullying claims, the Fair Work Commission can make any orders they see fit (other than an order requiring a financial payment), for example removing you from a direct manager. Orders can also be made by the Fair Work Commission to stop bullying.

COMMON LAW CLAIMS

There are also common law claims which can be brought against your employer. For example, wrongful dismissal may be brought against an employer where an employment contract is breached by the termination of employment.

VACCINATION RELATED ISSUES

The Fair Work Commission has the power to deal with some vaccination disputes at work. Vaccination matters result in other application under employment law provisions that involve disputes about vaccination.

These could include:

• for an application about unfair dismissal or general protections involving dismissal where the person says they were dismissed because they did, or did not, receive a vaccination or provide proof of vaccination;
• a dispute under a dispute resolution procedure in an enterprise agreement about the introduction of a workplace vaccination policy

In deciding whether unfair dismissal has occurred a Member of the Commission may consider whether:

• the employer had a valid reason for dismissing an unvaccinated employee because being vaccinated was an inherent requirement of the employee’s job;
• alternative duties were available to the employee which did not require the employee to be vaccinated; and
• an employer had met any consultation obligations in relation to the introduction of a vaccination-related policy

Vaccination-related issues may arise in general protections applications, such as where there is a dispute about whether the employee has been dismissed or where the employee is a casual employee and has not been offered shifts because they are not vaccinated.

A Fair Work Commission may also consider disputes arising between an employer’s direction that employees be vaccinated where a dispute resolution procedure in an enterprise agreement, modern award, public sector determination, contract of employment or other written agreement allows the Commission to deal with the dispute.

INDUSTRIAL ACTION

The purpose of taking protected industrial action is so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement.

Industrial action means action of any of the following kinds:

• the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice which results in:
  • a restriction, or limitation on, or
  • a delay in;
• the performance of work
• a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee
• a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work, or
• the lockout of employees from their place of employment by the employer.

The distinction between protected industrial action and unprotected industrial action is important due to the consequences that flow from the classification of the action. Where industrial action is ‘protected’, a limited immunity applies and remedies that might otherwise be sought in relation to the industrial action are generally not available.

Industrial action which is not protected may be stopped or prevented by the Fair Work Commission (the Commission) making orders, and the enforcement of those orders by the Court.