When is a dismissal considered unfair?
Casual workers in Australia can claim unfair dismissal if terminated harshly or unreasonably. They must, however, must meet minimum employment periods and may face additional protections or limitations under the Small Business Fair Dismissal Code.
Minimum requirement
Casual workers facing dismissal due to the pandemic may apply for unfair dismissal if they meet the minimum employment period requirements and if their termination was harsh, unjust, or unreasonable
What is "unfair"?
Key reasons for unfair dismissal claims include inadequate communication, lack of alternative solutions, and improper application of termination laws.
SMBs may have immunity
Small businesses, defined as having fewer than 15 employees, are protected under the Small Business Fair Dismissal Code, which can impact the outcome of unfair dismissal claims.
Dealing with casual employment dismissal cases due to the pandemic have been challenging Fair Work Commission, as acknowledged by the Full Federal Court of Australia. Several cases from casual workers have been reported across all states of Australia mostly with the following reasons:
- inadequate communication or negotiation between the worker and the employer
- not seeking any alternatives for a termination such as resorting for hour reduction
- no decrease of workload at the time a worker has been told of stand-down
- termination against the law
- infringement of general protections
- terminated employment initiated by the employer
- force resignation because of something an employer did
- not a case of genuine redundancy (a person’s job doesn’t need to be carried out by anyone)
While it is a common knowledge that paid sick and annual is what sets a casual worker apart from a full-time and part-time employee, and that the latter receives a notice prior to employment termination, a casual employee is also eligible to claim for an unfair dismissal.
Such scenario has been defined by the Ombudsman “when an employee is dismissed from their job in a harsh, unjust, or unreasonable manner.”
Like any full-time employee, casual employees are eligible to claim for an unfair dismissal.
Not sure if you’ve been dismissed unfairly? Use this Unfair Dismissal Eligibility Quiz.
Casual workers who have been stood down have to meet minimum employment period apart from their personal claims in order to apply. At least six months of employment is generally applicable for employees in order to file for a claim, and a six-month minimum for workers who were employed in small businesses. It is important to note however that small businesses are also protected from unfair dismissal under the Small Business Fair Dismissal Code. This means that an application may be dismissed by the Commission once the employer have followed the code and provide sufficient evidences despite the applicant’s claim.
Small Business Definition
All businesses are considered ‘small’ if the total number of employees are fewer than 15. It also matters to know that the earliest counting of the business size is by the time the employee has received a termination notice.
Workers who are unsure can use Unfair Dismissal Eligibility Quiz.
