Unfair Dismissal
The sacking of an employee is considered unfair if it is 'harsh, unreasonable or unjust'. It is illegal for your employer to dismiss you in this way or to sack you on the basis of discrimination. Unlawful discrimination includes being dismissed on the grounds of your race, religion, sex, union membership or pregnancy.
Most employees are covered by unfair dismissal laws. Those that are not covered include employees who earn more than $66 200 a year and some fixed term staff. If you are unsure if you are covered or not, your union can assist you.
If you feel that you have been dismissed without good reason, your union can apply to the Industrial Relations Commission to have your unfair dismissal case heard.
Your application must be lodged with either the State or Federal Industrial Relations Commission within 21 days of your dismissal.
Once the Commission agrees to hear your case, the first process is a conciliation hearing. This is an informal process where you and your union meet with the employer and a member of the Commission. This is designed to resolve the dispute between you and your employer voluntarily.
If the conciliation hearing is unsuccessful, the case is taken into arbitration. This process is more formal. In arbitration, the Commission examines evidence, hears arguments from both sides of the case and hands down a judgement.
In ruling on the case, the Commission considers:if a reason for your dismissal was given;if you were given an opportunity to give an explanation or justify your reinstatement or re-employment; if you were warned about unsatisfactory performance; any other relevant matters.
If the Commission finds that your dismissal was unfair, it can order your employer to: reinstate you to your former position; re-employ you into another available position; if reinstatement or re-employment is ordered, provide back pay and other entitlements that you are owed since the time of your dismissal; if reinstatement or re-employment is not considered practical, order your employer to pay you compensation up to the amount earned during your last six months of work; not to dismiss you (in the case where dismissal has been threatened).
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