Unfair Dismissal (Qld)
Unfair dismissal refers to a dismissal from employment that is harsh, unjust or unreasonable. If an employee wants to make an unfair dismissal claim in Queensland, where the claim is made depends on whether the person is employed in the private or public sector. Employment in the private sector is governed by the federal Fair Work Act 2009, and so the claim must be made to the Fair Work Commission (FWC). Employment in the public sector is governed by the state Industrial Relations Act 2016, and so a claim must be made through the Queensland Industrial Relations Commission (QIRC).
Fair Work Commission
An employee must make a claim to the FWC within 21 days of their dismissal, unless an extension is granted. The application must include:
- contact details for the employee, any representative, and the employer;
- employment details, including the dates the employee started work, was dismissed and finished work;
- reasons given by the employer for dismissal;
- reasons the employee believes dismissal was unfair.
When an employee lodges a claim with the FWC, the commission will send a copy of the application to the employer and seek a response. The employer must respond to the commission and the employee within 7 days. The response must include:
- the dates the employee started work, was dismissed and finished work;
- reasons for the dismissal;
- a response to the employee’s reasons they think the dismissal was unfair;
- any jurisdictional objections (why the dismissed employee does not fall within the FWC’s jurisdiction).
Parties can then opt for conciliation, which a voluntary process that aims to resolve a matter informally, in private, and confidentially, using an FWC conciliator. If a settlement is not reached, the matter will go to a conference or formal hearing where a decision will be made by an FWC member.
Conciliation settlements are flexible and are reached via negotiation between the parties. A settlement may include:
- continuity (as if the dismissal did not happen);
- payment of wages, entitlements or compensation;
- a statement of service;
- an apology;
- a non-disparagement agreement (where the parties agree not to criticise each other).
If a matter is dealt with by way of conference or hearing, the only possible remedies are reinstatement or compensation for lost wages (up to 26 weeks’ pay). In considering the matter, under the Fair Work Act, the FWC member must take into account factors such as:
- whether there was a valid reason for dismissal related to the employee’s capacity or conduct;
- whether the employee was notified of the reason;
- whether the employee was given an opportunity to respond to the reason;
- whether any warning was given about unsatisfactory performance if the dismissal was for that reason;
- whether the employee was unreasonably denied the presence of a support person in any dismissal discussions;
- the degree to which the size of the employer’s business would have likely affected dismissal procedures;
- the degree to which human resources staff or expertise would have affected dismissal procedures.
Reinstatement must be considered before an order for compensation is made. Reinstatement might not be an option in circumstances where, for example, the relationship between the employer and employee cannot be repaired, or the employer would dismiss the employee again.
In deciding compensation, the FWC must consider factors such as the effect of the order on the viability of the employer’s business, and any income earned by the employee between the dismissal and the order for compensation. The amount of compensation can be reduced on account of any misconduct by the employee. Compensation cannot be paid for shock, distress, humiliation or other hurt caused by the dismissal.
Queensland Industrial Relations Commission
The QIRC can generally deal only with applications from dismissed state and local government employees. An employee must make an application for reinstatement to the QIRC within 21 days of their dismissal. A copy of the application must be served on the employer within 7 days.
The QIRC will issue a Directions Order which sets out a timeline of duties for each party in the matter. Informal conferencing follows, with an aim to resolve the matter via a negotiated settlement. If a settlement is not reached, the QIRC will issue a certificate that the matter has not settled and is not likely to settle. The matter will then go to a hearing.
In considering the matter, under the Industrial Relations Act, the QIRC must take into account the same factors as the FWC does. If the commission finds the employee was unfairly dismissed, it can order that:
- the employee be reinstated to their former position;
- if reinstatement is impracticable, the employee be re-employed in another position the commission considers suitable;
- the continuity of the employee’s service be maintained;
- the employee repay any amount paid to them on dismissal;
- the employer compensate the employee for any lost wages;
- if both reinstatement and re-employment are impracticable, the employee be paid compensation of up to 6 months of wages.
A QIRC decision can be appealed to the Industrial Court of Queensland within 21 days of the decision, but only on 2 grounds: an error of law, or of jurisdiction.
For advice or representation in any legal matter, please contact Armstrong Legal.