The Fair Work Act 2009 (FW Act) (Part 3-2) sets out when a person may be entitled to a remedy for unfair dismissal. Unfair dismissal is where a person is dismissed from his/her employment and the dismissal is found to be harsh, unjust or unreasonable and is not a case of genuine redundancy.
- ‘Genuine redundancy’ is defined in the FW Act as being where the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise and the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
- However, the FW Act also provides that a person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise; or the enterprise of an associated entity of the employer. Further information on genuine redundancy is set out in Part 2.3 of this guide dealing with termination on the ground that an employee is excess to requirements.
Certain categories of employees are not covered by the unfair dismissal protections of the FW Act, including employees who have not completed their minimum employment period (section 382 of the FW Act). For APS purposes the minimum employment period is 6 months.
Paragraph 386(2)(a) of the FW Act makes it clear that a person is not dismissed if the person was ‘employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season’. In APS terms, this means that where a person is engaged for a specified term or for the duration of a specified task and employment ceases at the end of the period or on the completion of the task, then the person’s employment is not regarded as having been terminated at the initiative of the employer for the purposes of the FW Act.
However, a non-ongoing APS employee engaged for a specified term or specified task who has their employment terminated by the employer prior to the expiry of the term or prior to completion of the task may have rights to lodge an unfair dismissal claim subject to other tests in the legislation being satisfied. This is because non-ongoing APS employees engaged under paragraph 22(2)(b) of the Public Service Act 1999 (PS Act) can have their employment terminated at any time by notice (see subsection 29(1) of the PS Act). These types of engagements for a specified term or specified task which allow parties to give notice of termination before the end of the term are not considered to be ‘true contracts’ for a specified period or a specified task.
Casual employees may have access to the unfair dismissal provisions of the FW Act where they have been employed on a regular and systematic basis, have completed the minimum employment period and had a reasonable expectation of continuing employment during that period.
The Fair Work Commission, which deals with unfair dismissal claims made under the FW Act, is able to uphold the termination decision, or alternatively to order reinstatement or, where this is considered inappropriate, order the employer to pay compensation to the employee.
Part 3-1 of the FW Act contains the General Protections provisions. These provisions provide protections in relation to workplace rights (which can broadly be described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompass the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association).
Employers are prohibited from taking ‘adverse action’ against an employee because the employee has, or exercises a workplace right or engages in industrial activity. ‘Adverse action’ includes dismissal of an employee and injuring the employee in his or her employment.
The General Protections provisions apply to all APS employees regardless of the length of time they have been working for the employer or whether they are an ongoing employee or not.
An example of the application of General Protections provisions is that an employer is prohibited from dismissing an employee who is absent from work on parental leave, for the reason that the employee is on parental leave. The protection applies because the employee has exercised their workplace right to access their parental leave entitlement.
The General Protections provisions also contain a range of miscellaneous protections that are relevant in the termination of employment context.
- Section 351 prohibits an employer from taking adverse action (which includes dismissal) against an employee for a discriminatory reason (e.g. race, sex or disability).
- Section 352 prohibits an employer from dismissing an employee because they are temporarily absent from work due to illness or injury of a kind prescribed by the Fair Work Regulations (FW Regulations).
Notice of termination
Section 117 of the FW Act provides that an employer must provide the minimum notice period or payment in lieu of notice for termination of employment before terminating the employment of an employee. Minimum notice periods are as follows:
|Period of continuous service||Notice period*|
|* Note that under the FW Act, the relevant notice period increases by 1 week if the employee is over 45 years old and has completed at least 2 years’ continuous service with the employer.|
|Not more than 1 year||1 week|
|More than 1 year, but not more than 3 years||2 weeks|
|More than 3 years, but not more than 5 years||3 weeks|
|More than 5 years||4 weeks|
Where payment in lieu of notice is made, the employee is entitled to receive payment of at least the amount the employer would have been liable to pay to the employee at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
There are certain exceptions to the requirement in section 117 of the FW Act to give notice of termination or payment in lieu of notice of termination. Under section 123 of the FW Act, an employer is not required to give notice or payment in lieu of notice in certain circumstances including to employees engaged for a specified period of time, for a specified task or for the duration of a specified season; casual employees; or to employees whose employment is terminated for ‘serious misconduct’, which is defined in Regulation 1.07 of the FW Regulations.
- It should be noted that because of section 29 of the PS Act which allows an employer to terminate employment at any time, the courts are unlikely to regard APS specified term and task employment as specified term or specified task employment for the purposes of the FW Act. Agencies terminating the employment of a non-ongoing APS employee prior to the completion of the specified term or the duration of the task will therefore generally be required to give the employee notice of termination or compensation instead of notice at least equal to the amount set out in section 117 of the FW Act.
In terms of the ‘serious misconduct’ exemption, agencies will need to determine on a case by case basis whether the conduct of an employee falls within this definition of ‘serious misconduct’ in the FW Regulations and therefore whether the employee is entitled to notice of termination, or payment in lieu.
- However, this does not mean that APS employees can have their employment terminated ‘on the spot’ for serious misconduct. Agencies will need to follow their established procedures for determining whether an employee has breached the APS Code of Conduct, and termination of employment with or without notice on the ground of misconduct can only occur at the end of a properly conducted misconduct process.
It is important to note that the FW Act only sets a minimum notice period. APS industrial or other instruments and/or engagement documentation may provide entitlements to longer periods of notice than that available under the FW Act. If this is the case, then those longer periods will apply in APS termination decisions.
Further advice on identifying the amounts to be included where payment in lieu of notice of termination is to be made is set out in Appendix C of this guide.
Further information on minimum redundancy pay entitlements under the FW Act is contained in Part 2.3 of this guide dealing with termination on the ground that an ongoing employee is excess to requirements.