Employment law is currently governed by the Fair Work Australia Tribunal. The governing legislation is the Fair Work Act 2009. Provisions under the fair work act explain Unfair Dismissal, while the separate civil action of Unlawful Dismissal arises from a breach of an employment contract.

UNFAIR DISMISSAL

1. Fair Work Act 2009 Section 385:- Where an employee has been dismissed in a harsh, unjust or unreasonable manner. The dismissal was not on a basis of genuine redundancy and not consistent with the small business dismissal code. There is usually a 14 day time period to bring an action from the date of dismissal, but an application can be made to the tribunal if other circumstances have arisen giving rise for an inability to bring about an action.

2. Fair Work 2009 section 389:- Genuine redundancy is if the employer no longer required the employee’s role to be performed by anyone because of changes in the operational requirements in the employer’s enterprise; and the employer has complied with modern award or enterprise agreement conditions.

Also, any payment in lieu of an employee’s dismissal is usually a specific action in support of a genuine redundancy situation. Section 119 of the Fair work Act explains that the time period for redundancy pay is as follows:-

(i) 1 to 2 years employment – 4 weeks (ii) 2 to 3 years employment – 6 weeks
(iii) 3 to 4 years employment – 7 weeks (iv) 4 to 5 years employment – 8 weeks
(v) 5 to 6 years employment – 10 weeks (vi) 6 to 7 years employment – 11 weeks
(vii) 7 to 8 years employment – 13 weeks (viii) 8 to 9 years employment – 14 weeks
(ix) 9 to 10 years employment – 16 weeks

3. Fair Work Act 2009 section 380:- For Unfair Dismissal to apply, there must have been a relationship of employer and employee, whereby there was a contract of service. Employee must have also worked for a period longer than 6months on an on-going basis, not as a casual employee; as well as the Employer cannot be a small business owner (i.e. has fewer than 15 employees).

4. Fair Work Act section 387:- In considering whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia will take into account the following:-
(i) validity of the dismissal for the safety and welfare of other employees
(ii) whether the employee was notified of that reason and allowed to respond
(iii) whether there was a refusal to permit a support person for the employee
(iv) whether the employee had been warned about unsatisfactory performance prior
to a dismissal for unsatisfactory performance

5. Fair Work Act section 391 and 392:- Reinstatement and Financial Compensation are two of the possible remedies that Fair Work Australia may issue as damages for a successful unfair dismissal claim. There are a number of factors that will come into play when assessing reinstatement (relationship with employer, whether employee wishes to be reinstated) and financial compensation (length of employment, maximum 6 months wages can be granted).

Keep in mind that Unfair Dismissal is a creature of legislation.

UNLAWFUL DISMISSAL

Unlike Unfair Dismissal, Unlawful Dismissal arises when the rights and obligations under the contract of service between employer and employee have been breached. The duties and obligations of both employer and employee are too wide and detailed to explain in a succinct form; however they do commonly include:-

(i) Dismissal on racial, sex, ethnic, religious, age, physical or mental disability
(ii) Absence from work due to illness or injury
(iii) Being a member of a trade union
(iv) seeking office as a representative of employees
(v) Absence from work due to maternity or other parental leave
(vi) temporary absence from work to engage in voluntary emergency management
activity
(vii) filing a complaint or participating in proceedings against an employer

The courts have also expounded an area of “Mutual Trust and Confidence” of which vests between the Employer and Employee in a contract of service. This was done so in the house of lords case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23. This was further entrenched in Australia in the South Australian case of South Australia v McDonald (2009) 109 SASR 344. However, the SA court stated that Mutual Trust and Confidence provisions in Unlawful Dismissal will not be taken into account if Unfair Dismissal provisions are available to the case.

Both Unfair and Unlawful Dismissal involve very emotional and personal situations, which often delve into the employee’s own personal dealings at work and so forth. In managing an unfair Dismissal situation, a competent, experienced and again an empathic lawyer is definitely required.