In Australia, workers who have been wrongfully dismissed have 14 days from the date of dismissal to bring an unfair dismissal complaint. Wrongful dismissal proceedings are brought before Fair Work Australia (FWA). Small business employers can seek immunity from unfair dismissal Australia claims. The definition of a small employer is when an employer has fewer than 15 employees.
An employee of a small business can start a wrongful termination proceeding only if they have been with the company for at least one year. After this one-year period, a small business must be able to demonstrate that it has followed the procedures set forth in the Small Businesses Fair Dismissal Code in order to successfully defend a wrongful termination claim.
Workers employed by companies that are not “small businesses” (i.e., employers with 15 or more employees) can only initiate a wrongful termination procedure if they have been employed for at least 6 months and earn less than $108,300 per year.
Fair Work Australia has the discretion to arbitrate or refer a dispute to a hearing after the parties’ views have been considered. A hearing can take place at any time (i.e. before, after, or during a conciliation conference). Before considering the merits of a wrongful dismissal claim, Fair Work Australia must determine whether:
- the application has been submitted in due time;
- the application was filed against a person who is protected against wrongful dismissal;
- whether the termination was in accordance with the Small Business Fair Dismissal Code (if applicable); and
- Whether the dismissal was the result of a genuine dismissal.
In assessing whether a dismissal was harsh, unfair, or unreasonable, Fair Work Australia must consider the following:
- Whether there was a valid reason for the dismissal related to the individual’s ability or conduct (including the impact on the safety and welfare of other employees) and
- Whether the person has been informed of this reason and
- Whether the person has been given an opportunity to comment on a reason related to the person’s quality or conduct, and
- Any unreasonable refusal by the employer to allow the person to have a support person present at any discussions related to the dismissal, and
- If the terms related to a defective performance by the person, whether the person had been warned prior to the termination because of this defective performance, and
- The extent to which the size of the employer’s business is likely to affect the procedures for conducting the dismissal, and
- The extent to which the company’s lack of dedicated human resource management specialists or expertise would likely affect the procedures followed to complete the dismissal, and
- Any other matter that FWA deems relevant.
Fair Work Australia has the discretion to permit either party to be represented at any arbitration conference or hearing. A person involved in a unfair dismissal proceeding before Fair Work Australia must bear his or her own costs. However, Fair Work Australia may order a person to pay some or all of another person’s costs where the request for, or response to, unfair termination was frivolous, vexatious, unreasonably made or had no reasonable chance of success. Otherwise, FWA may award up to 6 months’ salary and/or reinstatement as compensation for a successful unfair dismissal request.
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