Fair Work Act 2009 (Cth)
An employee who has been dismissed without a valid reason may be protected by the provisions of the Fair Work Act 2009. If the dismissal is deemed to be harsh, unjust or unreasonable and was not a case of genuine redundancy, it may constitute an unfair dismissal for the purposes of the Fair Work Act. If this is the case, an unfair dismissal claim can be brought to Fair Work Australia on behalf of the employee within 14 days of the date of the dismissal.
Part 3-2 of the Fair Work Act 2009 outlines when a dismissal will be considered ‘unfair’ and in breach of the Act. The unfair dismissal provisions were introduced in order to establish procedures for dealing with unfair dismissals that are quick, flexible and informal whilst addressing the needs of employers and employees. The provisions also provide an opportunity for an aggrieved employee to gain compensation and ensure that a ‘fair go all round’ is achieved: Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
Under section 382 of the Act, a person is protected from unfair dismissal if the person is an employee who has worked for their employer for at least the minimum employment period and is subject to a modern award, enterprise agreement or earns less than the high income threshold. Section 383 of the Act defines the minimum employment period to be 6 months if the employer is not a small business and one year if the employer is a small business. As such, an employee will be prevented from bringing an unfair dismissal claim if they have not been working for the employer for a continuous period of 6 or 12 months, depending on the nature of engagement.