When can your employer terminate your employment?
If you’re a permanent employee (or a long term casual employee) your employer can only lawfully terminate your employment for a valid reason, which means one based on:
- your capacity to work or your performance;
- your conduct, including its effect on the safety and welfare of other employees;
Before they can dismiss you, your employer will usually first need to give you both a warning (preferably written) and a reasonable opportunity to correct your behaviour or lift your performance. It must also let you bring a support person into any meeting to discuss your performance or conduct, as well as giving you the chance to present your side of the argument.
If they don’t you may be entitled to bring an unfair dismissal claim.
When can you bring an unfair dismissal claim?
If your employer doesn’t follow the correct procedure for dismissing you, fails to pay you what you’re entitled to, or otherwise denies you your rights, and you are employed in the private sector or by the Commonwealth or a Commonwealth authority, you may be entitled to bring an unfair dismissal claim in the Fair Work Commission. The Fair Work Commission, will ask itself whether your dismissal was ‘harsh, unjust or unreasonable’. The Fair Work Commission will also examine whether your employer gave you a ‘fair go all round’ before dismissing you.
Your claim is not likely to succeed if you employer can show that your termination was a ‘genuine redundancy’ or if they are a small business and they complied with the Small Business Fair Dismissal Code. Tyler & Co can advise you on whether your claim is likely to succeed.
When can’t you bring an unfair dismissal claim?
Sometimes you can’t bring an unfair dismissal claim, even if your dismissal was harsh, unfair or unreasonable. For instance, you won’t be able to bring an unfair dismissal claim if you’re still in the first six months of your employment or 12 months (if you’re employed by a small business).
Are there any situations where an employer can’t dismiss you?
There are some unlawful reasons for which an employer can’t terminate your employment. Unlawful reasons for dismissal include dismissing you because:
Discrimination on account of your race, colour, sex, sexual orientation, age, religious beliefs, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (Although it makes an exception if it’s an inherent requirement of the job);
- You’ve been away temporarily from work through illness or injury;
- You are or aren’t a union member or are running for office as a union representative;
- You’re on parental leave, paid or unpaid;
- You’re away because of emergency volunteer work;
- You’ve filed a complaint or started proceedings against an employer.
How can a solicitor help?
If you’ve been unfairly dismissed, a solicitor can help in so many ways, including:
- Advising you on whether you should make an unfair dismissal or another employment claim;
- Advising you on whether there are other ways to resolve your dispute;
- Advising you on whether you’ve received all your entitlements;
- Advising you on whether there are other ways or approaches including contacting the Fair Work Ombudsman;
- Organising your claim and representing you at the Fair Work Commission
If you feel you have been unfairly dismissed, contact Tyler & Co for an appointment today and let us help you clarify where you stand and what you can do.
Information sourced from: