This is the area of employment that commonly sits at the heart of most employment disputes. Ensuring you have clear and reasonable expectations, consistently applied, is critical to managing your workers. Failing to have those clear standards often leads to disputes and any one of the issues we consider below.
A fair and reasonable performance management process, whilst not specifically set out in any rules or legislation, requires that employees:
have been alerted to the reasonable conduct and performance requirements of the employer;
are alerted to their failures to comply with those standards;
are given the opportunity to improve their performance or conduct, including reasonable support and guidance to improve; and
have been notified that their continuing employment is at risk if they fail to meet the reasonable expectations of their employer.
What is reasonable is a subjective consideration and independent advice about the facts of a situation will assist to determine if a proposed standard or action is reasonable.
A national system employee, who has been dismissed, is protected from unfair dismissal and is eligible to make an application for unfair dismissal remedy if:
- they have completed the minimum period of employment; and
- they earn less than the high-income threshold; or
- a modern award covers their employment; or
- an enterprise agreement applies to their employment.
- facilitate accountability to its stakeholders
The FWC must balance the needs of business (including small business) and the needs of employees and provide remedies, where a dismissal is found to be unfair, with an emphasis on reinstatement.
The procedures and remedies available to an employee found to be unfairly dismissed, and the manner of deciding and calculating remedies are intended to ensure that a ‘fair go all round’ is accorded to the employee and employer concerned.
Dismissal means that a person’s employment has been terminated at the employer’s initiative, or the person was forced to resign because of the conduct or course of conduct engaged in by the employer.
Dismissal does not include circumstances where:
- a person is demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer;
- a person was 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:
- specified that the employment was limited to the duration of the training arrangement, and
- whose employment ends at the end of that training arrangement; or
- there is a case of genuine redundancy, or
- the dismissal is consistent with the Small Business Fair Dismissal Code (in the case of employees of small business).
However, a person employed under point (b) above, could be considered to have been dismissed if a substantial purpose of the employment of the person under a contract of that kind was so that the employer could avoid their obligations under the unfair dismissal provisions of the FW Act.
Small business employers
Small businesses have different rules for dismissal. The Fair Dismissal Code applies to small business employers with fewer than 15 employees. This is calculated on a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis, at the time of the employee’s dismissal.
Small business employees cannot successfully make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer can demonstrate with evidence, that they have followed the Code, then the dismissal will be deemed to be fair.
Notification of dismissal should not be made by text message or other electronic communication. The message of dismissal should be conveyed face to face unless it is not safe to do so. Even in circumstances where text message or other electronic communications are ordinarily used, advising an employee that their employment will be terminated is a matter of such significance that dismissal must be conveyed personally, with arrangements for the presence of a support person and documentary confirmation. There are also health and safety issues to be considered when terminating someone’s employment and advice should be sought about how you handle a dismissal to comply with your obligations.
Time of dismissal
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. A dismissal can be communicated orally and where the communication is in writing only, the communication must be received by the employee for the termination to be effective.
Depending on the employee’s period of service, they will be entitled to a notice period before their employment comes to an end. An employer can pay an employee an amount equivalent to their earnings for the notice period. Where payment in lieu of notice is made the dismissal usually takes effect immediately.
Applications for Unfair Dismissal
Employees must lodge an application for Unfair Dismissal within 21 days after the dismissal took effect. In limited circumstances, where the Applicant can demonstrate extenuating circumstances, the FWC may extend the time for lodgment, but this is a very high standard.
When deciding if an employee has been unfairly dismissed, the FWC will consider:
- if the person has access to the jurisdiction;
- if there was a valid reason relating to capacity or conduct;
- was notified of the reason for dismissal;
- if the person had an opportunity to respond;
- if the person was unreasonably refused a support person;
- if the person was adequately warned about their unsatisfactory performance or conduct;
- the size of employer’s enterprise and access to human resources specialists; and
- any other matters the FWC considers to be relevant.
Management of application
Employers may raise objections to an application in their initial response if they believe that the employee does not have access to the unfair dismissal jurisdiction. The FWC will have to deal with those objections either before or in hearing a matter. A jurisdictional objection generally will not prevent conciliation taking place.
Conciliation is commonly used to give both parties an opportunity to put their arguments to an independent conciliator who will first assist the parties to resolve the matter or failing that, provide the parties with an assessment of the case with regards to a full hearing of the matter. A considerable majority of unfair dismissals are resolved in conciliation.
Whilst the FWC is largely a jurisdiction of self-representation, many employees and employers seek to be represented because they feel they cannot manage the complexities of the process. A lawyer or paid agent must seek the permission of the Commission to represent a person in a matter before the Commission. This includes making an application or submission on another person’s behalf. It is not an automatic approval process and only a Commission member can give permission for a lawyer or paid agent to represent a party, usually on the grounds that it will assist the parties and the FWC to deal with complex arguments and points of law.
All employees have protected rights at work. These protected rights include:
- workplace rights;
- taking or not taking part in industrial activities or belonging or not belonging to an industrial association; and
- Being free from discrimination.
Employees cannot be treated differently or worse because they possess or have exercised a right, or for a discriminatory reason. Employees are protected from:
- adverse action;
- undue influence or pressure; and
A person has a workplace right if they:
- have a benefit, role or responsibility under a workplace law, instrument or an order made by an industrial body;
- can start or take part in a process or proceeding under a workplace law or instrument;
- can make a complaint or inquiry about their employment to a body; or
- are an employee and can make a complaint or inquiry about their employment.
Adverse action is action that is unlawful if it is taken for particular reasons and includes doing or threatening to do any of the following:
- firing an employee;
- injuring the employee in their employment, e.g. not giving an employee legal entitlements such as pay or leave;
- changing an employee’s job to their disadvantage;
- discriminating between employees;
- not hiring someone because of a protected reason;
- offering a potential employee different and unfair terms and conditions for the job, compared to other employees;
- ending a contract, or refusing to enter into a contract with an independent contractor, discriminating against them in the terms and conditions offered, altering their position to their detriment, refusing to make use of their services, or refusing to supply goods or services to them;
- an employee or independent contractor taking industrial action against their employer or principal.
Employers must take general protections issues seriously and consider the risks when they are making decisions about their workers or potential workers. General Protections is a complex area and one in which employers should seek legal advice.
As well as being relevant to the FW Act, employers in any industry or sector have specific responsibilities under state and federal Anti-Discrimination legislation to provide workplaces free from discrimination, sexual harassment and vilification. In Queensland, public entities have further obligations under the Human Rights Act 2019, to act and make decisions in a way that is compatible with human rights, and to give human rights proper consideration when making decisions. A public entity is an organisation or body providing services to the public on behalf of the government or another public entity.
Discrimination can cost businesses time and money, damage morale, reduce productivity and undermine business reputation, but there are also legal obligations on employers to provide workplaces free from discrimination, sexual harassment, victimisation and vilification. Employees have access to both State and Federal Human Rights Commissions to raise complaints, as well as the General Protections provisions of the FW Act.
Employers must not allow workers to be discriminated against, sexually harassed or subjected to vilification by other workers, clients or management. If they do, they can be held legally liable. This means that the employer can ultimately be held responsible for the behaviour of their employees, and therefore need to be proactive in education staff about their responsibilities and standards of behaviour that are acceptable in the workplace.