Unfair Dismissal FAQ

If you have made an unfair dismissal claim, your employer may make a jurisdictional objection to your claim on the basis of redundancy. This means that your employer believes you were genuinely made redundant in the circumstances, and that you were not unfairly dismissed.

A redundancy is genuine for the purposes of an unfair dismissal application if:

• Due to changes in the operational requirements or procedures of an employer’s enterprise, that employer no longer requires the job in question to be performed by anyone;
• The employer has not contravened any obligations it has regarding an enterprise agreement or modern award, including obligations regarding employee consultation prior to redundancy;
• In the circumstances, it was not reasonable for the employee to be relocated or redeployed within the employer’s business, or associated entity.

In order for a jurisdictional objection to succeed, an employer must successfully demonstrate that all three of the above points are satisfied. In order for an employee to overcome a jurisdictional objection based on redundancy, they must demonstrate that any of the above points are untrue; they do not need to demonstrate that all three are untrue.

It may be possible for you to demonstrate that your job is still required. The easiest way to do this is to provide evidence that your role was filled by another employee shortly after you were dismissed on the basis of redundancy. However, if following your dismissal your duties have been redistributed among other employees, your job is no longer required.

Most enterprise agreements and modern awards require that employers consult with an employee that is to be made redundant, and that they do so in several ways. Most agreements and awards require employers to do the following:

• Notify employees of any proposed changes that may affect them;
• Discuss with the employee any effects that proposed changes may have on them;
• Discuss measures taken to avert or mitigate any adverse effects of proposed changes with affected employees;
• Commence such discussions as early as is practicable under the circumstances;
• Promptly and thoughtfully consider matters raised by any affected employees;
• Provide affected employees with any relevant information regarding proposed changes in writing.

If your employment is bound by a modern enterprise agreement or award that contains these obligations, you may use this as evidence that your redundancy was not genuine if your employer did not comply with them.

You may be able to demonstrate that your employer was capable of reasonably relocating or redeploying you. You will need to demonstrate knowledge of an alternative role that you could fulfill based on your experience and skills which existed at the time of your redundancy.

Establishing one of these points may overcome a jurisdictional objection by your employer, but it does not demonstrate that your dismissal was unjust, harsh, or unreasonable in the circumstances.

The commission may order your employer to provide documents containing information about the changes that led to your redundancy. Such documents may be used as evidence of the items above.

Under section 117 of the Commonwealth Fair Work Act 2009, there are no formal requirements regarding methods of dismissal other than that they are expressed in writing. In the case of Guirguis v Ten Twelve Pty Ltd and Anor (2012) FMCA 307, it was found that text messages comply with the written notice obligations laid out in the Act.

Whether your dismissal was unfair or not is the real issue. If you earned below the high income threshold and were employed for the minimum period under the Act, your claim will be considered in relation to the factors listed under section 387 of the Act. If your dismissal was found to have been unfair, unreasonable, or unduly harsh, you may be entitled to make an unfair dismissal claim.

If you were dismissed without notice via text message, you would not have had the opportunity to respond. It has been held by the Fair Work Commission that dismissal via text message is inappropriate when it is the sole means by which notification of the dismissal is made (Sokolovic v Modestie Fashion Australia Pty Ltd, 2011, FWA 3063 at [56] and Kaye v Fahd, 2013, FWC 1059 at [140]).

It may be permissible for an employer to dismiss employees via text message if face-to-face meetings or discussions would have no impact on the decision to dismiss, or where violence or aggression by the employee is a genuine prospect. For example, if you have committed willful or otherwise gross misconduct that you have admitted to, or was demonstrated to have undeniably occurred.

Under the Commonwealth Fair Work Act 2009, as long as you have been employed for more than 12 months and your income is below the high income threshold you are entitled to make an unfair dismissal claim against your small business employer.

An employer is regarded as being a small business employer if they employ fewer than 15 people. This does not include casual staff, unless they are employed on a regular and systematic basis. Employees working for an identity associated with your employer make be counted in these circumstances. These conditions are viewed as they were at the time of your dismissal.

The Fair Work commission treats cases involving a small business employer differently to those involving larger employers. The Commission will still seek to determine whether or not you were dismissed at your employer’s initiative, or in the case of redundancy, whether or not it was a genuine redundancy.

As small business employers are accountable to a different dismissal code, the Small Business Fair Dismissal Code, if they are found not to have contravened this code, the Fair Work Commission will find that your dismissal was not unfair. In cases such as Jingmin Zeng v Vectus Biosystems Ltd (2015) FWC 5536, the Commission found that the employer had acted in accordance with the Small Business Fair Dismissal Code, so an unfair dismissal claim by the terminated employee was dismissed.

Requirements of the Small Business Fair Dismissal Code include:

• Providing employees with notice of their dismissal;
• If the dismissal is a summary dismissal, an employer must reasonably believe that the dismissed employee engaged in serious misconduct of some form.
• If an employee has demonstrated unsatisfactory conduct, performance, or general incapacity, they must have received warnings as well as opportunities to respond to said warnings. The employee must be given reasonable opportunity to improve following these warnings before they may be summarily dismissed.

The Fair Work Commission and Fair Work Ombudsman websites contain a copy of the Small Business Fair Dismissal Code as well as the compliance checklist for employers.

Comments posted to social media may provide an employer with a basis for lawful dismissal of an employee. In such cases, the following factors are of key importance:

• The nature of the offending comments;
• The intention with which the offending comment was published;
• The date and time that the offending comment was published;
• Who was able to view the offending comment;
• The extent that a company or individual/s is identified in the offending comment;
• The provisions of any lawful employee code of conduct enforced by the employer;
• The provisions of an employee’s contract of employment;
• Company guidelines.

The Australian constitution, unlike the US constitution, does not provide an unrestricted right to free speech. Australian law allows for freedom of information, expression, and opinion, but there are circumstances where written, verbal or other language expression can be in contravention of the law.

The Racial Discrimination Act 1975, and the behaviour it deems unlawful, is an example of this. Under the Racial Discrimination Act 1975 it is unlawful to commit an act that is likely to offend or insult an individual or group on the basis of their race or ethnicity.

Racist or sexist comments, as well as comments intended to incite violence or fear, may be considered unlawful and provide grounds for dismissal.

With the recent and ongoing proliferation of social media, and its growing value for businesses, many employers are beginning to include social media guidelines or clauses in employment contracts or codes of conduct. Under some circumstances, the contravention of these guidelines or clauses may entitle an employer to dismiss an employee.

The following examples refer to the nature of comments posted on social media that have resulted in the lawful dismissal of employees:

• Mockery or unreasonable criticism of an employer’s policies;
• The expression of strong political views;
• The failure to uphold the reputation or integrity of the employer;
• Threats or insults directed at the employer or another employee.

For social media comments to be the cause of an employee’s dismissal, the usually must identify the employer or specific employees of the same employer. Vague or general comments have been held as insufficient grounds for lawful dismissal.

If your employer requests that you remove commentary from social media and you fail to do so, you may be dismissed with sufficient grounds for it to be lawful.

Given the growing influence of the internet and commercial reliance on social media platforms, it is possible to be dismissed for comments made outside of work hours. Social media guidelines are often included in code of conduct arrangements concerning behaviour outside the workplace.

Australian law does not recognise an explicit right to privacy, and online privacy is no different. Anonymous blog posts and social media accounts with privacy settings activated have been the subject of lawful termination of employment.

The Commonwealth Fair Work Act 2009 and Victorian Equal Opportunity Act 2010 state that it is unlawful for your employer to dismiss you due to you voicing concerns over employment entitlements (including superannuation). You have the right to make a complaint, whether formal or informal, about your employment entitlements. You also have the right to request information from your employer about your entitlements.

An employer may deliberately or inadvertently be failing to provide you with your employment entitlements. It is important that you make yourself aware of any benefits you are entitled to. Your entitlements may be embodied in an award, statute, employment contract, or enterprise agreement.

The payment of superannuation to employees is a fundamental element of Australian commercial law and is an obligation that employers are well aware of. This being the case, you should not fear dismissal due to raising concerns about your superannuation or other workplace entitlements. If you are dismissed as a result of raising such concerns, your employer may have contravened the Victorian Equal Opportunity Act 2010 or the Commonwealth Fair Work Act 2009.

Commonwealth Fair Work Act 2009

Under section 340(1) of the Fair Work Act 2009, an employer may not take any adverse action against an employee as a result of the following:

• The employee possessing a workplace right, including the exercising of this workplace right, or the proposal made at any time to exercise or not exercise this workplace right;
• The employee has sought to enforce a workplace right and the employer has sought to prevent them from doing so.

Under section 342(1) of the Fair Work Act 2009, ‘adverse action’ may be defined as conduct by an employer that includes injury or alteration of employment, dismissal, or discrimination to an employee’s detriment. Section 342(2) of the Fair Work Act 2009 states that adverse action includes the threat of taking action described in section 342(1). Your employer will be acting in contravention of the Fair Work Act 2009 if it dismisses you or threatens to dismiss you upon receiving complaints about a workplace right or rights.

You may derive your workplace rights from multiple sources. Under section 341(1) of the Commonwealth Fair Work Act 2009, a person has a ‘workplace right’ if they:

• Have a role of responsibility under a workplace law, order made by an industrial body, or workplace instrument, or are entitled to the benefit of these;
• Are able to participate in, or initiate, a process or proceedings under a workplace instrument or workplace law;
• Are able to make an inquiry or complaint to a body or person who under a workplace law, has the capacity to seek compliance with that workplace instrument or law;
• If the person is an employee, in relation to their employment.

As an employee, these provisions ensure that it is unlawful for an employer to dismiss you (an ‘adverse action’) based on your proposal to claim a ‘workplace right’ (such as superannuation entitlements).

Under these provisions, you may be protected from dismissal if you have made a complaint to an external authority, or you have made a complaint relating to a workplace instrument.

If you have been dismissed after exercising these rights, you may be entitled to lodge a general protections claim with Fair Work Australia under the Fair Work Act 2009.

Under certain ‘victimisation’ provisions found in the Victorian Equal Opportunity Act 2010, you are protected from dismissal on the grounds of having made a complaint about your employer to an external authority such as the Victorian Equal Opportunity and Human Rights Commission.

These provisions seek to protect you from dismissal, as well as any humiliation, denigration, or other detriment at the hands of your employer due to a complaint made by you to an external body.

Under these provisions, an employer may not lawfully dismiss an employee for making a complaint, or threatening to make a complaint regarding unlawful discrimination in the workplace. An employer that subjects an employee to any form of detriment due to such a complaint will be acting in contravention of the Equal Opportunity Act 2010.

Section 103 of the Victorian Equal Opportunity Act 2010 explicitly prohibits ‘victimisation’, which is defined under section 104 of the Act as subjecting, or threatening to subject, an individual to any detriment because the individual, or an associate of the individual has:

• Brought a dispute before the Commissioner seeking dispute resolution;
• Submitted a complaint against any person pursuant to the old Act;
• Has brought proceedings under the old Act or this Act against anyone;
• Alleged that an individual or entity has acted in contravention of Parts 4 or 6 of this Act, or Parts 3, 5, or 6 of the old Act. If the allegation was not made in good faith or was false then this does not apply.

The protections afforded by this provision allow you to file a discrimination (including sexual harassment) complaint with the Victorian Equal Opportunity and Human Rights Commission without fearing dismissal or any other detriment as a result. These provisions protect you from victimization by anyone in the employer’s organisation.

You may also be victimized if you provide evidence relating to another complaint made to an external body, or give indirect indication that you have made or will make a complaint. If you are victimized, your employer is likely acting in contravention of the Act.

If your temporary absence is the sole reason for your dismissal, your employer may have breached the Commonwealth Fair Work Act 2009 and/or anti-discrimination legislation. Taking a period of sick leave may not be lawful grounds for dismissal. Temporary injury or impairment may also provide you with grounds for additional protections under the Act.

Occasional employee absence due to injury or illness is inevitable. It is an important workplace right that employees are entitled to these temporary absences without fear of dismissal or other detriment.

Commonwealth Fair Work Act 2009

Section 352 of the Act states that it is unlawful for your employer to dismiss you due to temporary absence resulting from injury or illness.  Your employer may face a maximum penalty of $11,095.20 for breaching this section of the Act (by dismissing you due to temporary absence due to injury or illness). If you have changed employers after your dismissal, your former employer may remain liable for up to 6 years following your unfair dismissal.

There are protections in place for employers to ensure that they cannot fairly dismiss employees who are absent without legitimate excuse. The Commonwealth Fair Work Regulations 2009 declare that an employee must submit a medical certificate to their employer as evidence of the injury or illness that has caused their absence, and that they must do so within 24 hours of the commencement of their absence, or such a period that is reasonable under the circumstances.

If you are absent from work due to injury or illness, it is important that you obtain a medical certificate from a healthcare professional and submit it to your employer as soon as possible. You must also comply with any reasonable demands by your employer regarding the reason and length of your absence from work.

A temporary absence due to injury or illness covered by the Act does not include:

• An absence of more than 3 months;
• Total absences equivalent to more than 3 months within a 12 month period not covered by paid carer’s or personal leave.

If you believe your absence may last more than three months, you will need to inform your employer as soon as possible, as they may require additional information.

Theoretically, a contract of employment runs forever. However, many contracts include a termination clause which allows, in certain circumstances, for the contract to come to an end. Any employment relationship may end if an employee commits serious misconduct such as workplace harassment or theft.

In other circumstances, an employer can terminate employment by providing an amount of notice that is contained in the employment contract or award. If an employment contract does not contain a termination clause, ‘implied’ notice terms can be used.

The Commonwealth Fair Work Act 2009 contains protections for employees who have been dismissed without valid reason. Any dismissal found to be unjust, harsh, or otherwise unreasonable, may contravene the Act and provide grounds for an unfair dismissal claim to be submitted to Fair Work Australia within 21 days of the date the dismissal occurred.

The Act contains definitions of what constitutes an unfair dismissal in parts 3-2. These provisions are designed to be flexible, quick, informal, and adequate for the needs of both employees and employers. These provisions also ensure that employees affected by unfair dismissal have the opportunity to gain compensation.

Section 382 of the Act states that an employee who is subject to a modern award/ enterprise agreement, and has worked for an employer for at least the minimum employment period (or earns less than the high-income threshold), is protected from unfair dismissal. The minimum employment period under section 383 of the Act is 6 months for non-small business employees and 1 year for small business employees. An employee is prevented from bringing an unfair dismissal claim against their employer if they have not been engaged in that employment continuously for 6 or 12 months, depending on the nature of that employment.

Typically, a reason given for such an action would be that an employee was fearful that their employer would claim the termination was the result of resignation, and not dismissal, if an unfair dismissal claim was made. The affected employee may wish to provide evidence in the form of these recordings to prove that the termination was the result of dismissal.

The Surveillance Devices Act 1999, and other precedents, limit what recordings may be used in supporting a legal case. This is because individuals would not be likely to make incriminating statements if they knew they were being recorded.  Cases are viewed individually however, and in some circumstances you may be able to use recordings as evidence with which to support your case.

In the event that you have become fearful that your employer may manipulate the outcome of any discussions or meetings regarding any legal action enforcing your employment rights, you may have recorded the conversation to protect yourself.

Though such fears may be, under such circumstances, justified, there is legislation which limits the ability of such recordings to be used as evidence in legal proceedings. Even if the recordings were made in compliance with the law, you may not be able to use them as evidence against your employer in court.

Victorian Surveillance Devices Act 1999

The purpose of this Act is to restrict the communication, use, and publication of information obtained through surveillance devices. Surveillance devices can include visual, tracking, and audio devices. Under the Act, permission may be granted to covertly record conversations, however these permissions are usually only granted to Police for the purpose of investigating criminal offences.

Section 30D defines protected information as being information that is obtained through the use of surveillance devices. Bringing your recorded material to the attention of a tribunal or court in which you are taking part in legal proceedings is to publish and use protected information. Using this information as evidence in legal proceedings attracts limitations and prohibitions. These exist to protect employers and employees alike from injustice that may arise from the recordings, as it is highly unlikely anyone would make incriminating statements if they were aware they would be used against them at a later date. These protections must be enforced when those statements are to be used against the interests of the person who made them.

The publication or communication of private activities or communications is prohibited under the Act. Under section 11 of the Act you are prohibited from knowingly publishing or communicating recordings made of conversations you have had with your employer which you have captured with a surveillance device.  There are some circumstances where this may not apply, including:

• A communication that is made with the implied or expressed consent of each party taking part in a private conversation;
• A communication that is made in the public interest or for the lawful protection of the interests of the person who has made it;
• A communication made in the course of disciplinary or legal proceedings.

If you requested that your employer consent to your recording of any meetings or conversations between you and the employer, it is very unlikely that the employer would have made incriminating statements in those meetings or conversations.

If you have recorded any private conversations you must be cautious about who you show the recordings to, as disclosure of this recorded information is prohibited. If you disclose this recorded information to your lawyer for the lawful protection of your interests, your lawyer may use this to assist you in your case regarding an employment matter.

If you publish any information obtained secretly by you, you may have committed an offence under the Act. Recklessly or intentionally publishing such information may result in you being found guilty of an offence and imprisoned for up to 2 years under section 30E of the Act. Your employer may take civil action against you if it believes your recordings misuse any of its confidential business information. Any use of recorded information may have serious consequences.

Part 2A of the Act specifically protects the privacy of employees. Section 9B states that it is prohibited for an employer to knowingly install or use listening or optical surveillance devices to listen, observe, monitor, or record the activities of employees in private areas such as bathrooms. Employees are also prohibited from publishing or communicating any conversation or activity recorded under the circumstances of section 9B.  Your employer may record you in public areas such as the work area or shop/factory floor, but not private areas such as change rooms or bathrooms.

You must be cautious not to disclose recordings of conversations to which you are a party to anyone but your lawyer, as you are prohibited from using such recordings for any purpose besides the protection of your lawful interests. The Victorian Evidence Act 2008 has additional requirements for the tendering of evidence which may differ depending on the specific tribunal or court in which you seek to use the recorded information. Ensure that you make your lawyer aware of any recorded information which you possess so that they may decide whether or not to tender it as evidence, with consideration of the potential consequences for doing so.