An unfair dismissal occurs if an employee has been made redundant due to unfair circumstances. These unfair circumstances vary depending on the job, the situation and why the dismissal occurred. Often an employee is dismissed unfairly and due to not being aware of legalities in the workplace they miss a severance package or chance to appeal.
If you are unsure on what to do a simple call to us will clarify everything and at the same time take a lot of stress off your shoulders. Give us a call 7 days a week on 1800 333 666.
If you feel you have been unfairly dismissed by your employer contact us. A simple call with one of our staff can ease a lot of the stress you are going through and it only takes a couple of minutes. We have staff available 7 days a week. 1800 333 666
Sometimes we say things in the heat of the moment or sometimes we are put in limbo when it comes to the future of our employment. The Fair Work Commission recently heard a case of unfair dismissal in Queensland in regards to whether an employee was terminated at the initiative of the employer.
In Hudson v The PJ Sourris Family Trust & James P and Christopher P Sourris t/a Aspley 10 Pin Bowl [2021] FWC 2227, the Applicant was employed as a casual who worked on a regular and systematic basis (approximately 3 shifts a week for 18 months). In November, the Applicant received a formal warning and in December the Applicant’s hours were reduced to only two shifts for the entirety of December.[1]
The Commission decided that the decision by the Company to not give any shifts in January to the Applicant, with no mention of shifts in the future, constituted dismissal under section 386 of the Fair Work Act 2009 (Cth). The Company argued that the Applicant had dismissed himself when he had requested a separation certificate from the Company in January. The Commission adjudicated that requesting a separation certificate was not an incitement of resignation because at that point in time the Company had already ended the employment relationship. The Commission in Queensland went further to find that there was no valid reason for dismissal and that the Applicant was not notified of any reason for dismissal and subsequently was not given the opportunity to respond to any allegations. The Commission found such a dismissal to unfair dismissal as it was harsh unjust and unreasonable. Simpson C of the Fair Work Commission Queensland ordered compensation to the Applicant for the unfair dismissal.
[1] Hudson v The PJ Sourris Family Trust & James P and Christopher P Sourris t/a Aspley 10 Pin Bowl [2021] FWC 2227.
S 386(1)(a) of the Fair Work Act 2009 (Cth) stipulates that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative. The use of the phrase ‘termination at the initiative of the employer’ refers to termination that is brought about by an employer and one that has not been agreed to by the employee.
The action of the employer must be what results in termination. As per Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645, a termination at the employer’s initiative occurs when the employer’s action ‘directly and consequentially’ results in the termination of employment, and had the employer not acted in such a manner, the employee would still be employed.
Queensland has one of the highest rates of casual workers in the workforce in the country. Therefore, this leaves 25.6% of the workforce in Queensland in a vulnerable position. In Queensland, Cairns, Toowoomba and the outback have the highest percentage of casual workers in Queensland (see: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1920/StatisticalSnapshotCasualWorkersAustralia ).
In Kyayam v Navitas English Pty Ltd , the Applicant was a casual employee, employed to perform teaching services from 2005 to 2012. In April 2012, the Applicant received an offer of employment as a ‘fixed-term teacher’ until 30 June 2013.[1] The offer made mention that either party could terminate the employment by giving four weeks’ written notice. This offer was accepted by the Applicant. This offer was extended on two more occasions until the last contract where the Applicant was not offered another contact to continue performing his work due to his performance. The Applicant put forward that this was a dismissal as per section 386(1)(a) of the Fair Work Act 2009 (Cth). The Company said that this did not constitute dismissal as the employment had ended through the “effluxion of time”.
Similarly, the Applicant in the case of Hudson v The PJ Sourris Family Trust & James P and Christopher P Sourris t/a Aspley 10 Pin Bowl [2021] FWC 2227, was a casual, however did not have a designated end date to his employment. However, as per section 384(2) of the Fair Work Act, if a casual who was employed on a regular and systematic basis and if the casual had a reasonable expectation of ongoing employment on a regular and systematic basis, then the employee is able to lodge an unfair dismissal application if they believe to have been dismissed at the employer’s initiative. However, it should be noted that an employee in Queensland has to be employed systematically for 6 months (12 months if employer is a small business) regardless of their status as a full-time, part-time or casual employee.
Therefore, a casual in Queensland, who has been employed with the Company for at least 6 months (12 months if employer is a small business) and was receiving regular and systematic hours, is eligible to lodge an unfair dismissal application with Fair Work in Queensland if they have had their shifts cut without reason or warning. To find out if you have been unfairly dismissed by your employer in Queensland, give us a ring on 1800 333 666.
In Queensland, employees of the State public sector or local government are not protected under the national Fair Work system, unless their employer has a registered agreement in the national system. Employees not covered by the national system can pursue their industrial relations matter under their state system, which is the Queensland Industrial Relations Commission (QIRC).
A dismissed employee in Queensland that does not work for a State government entity can pursue an unfair dismissal claim in the Fair Work Commission.
A dismissed employee in Queensland that works for a State government entity can pursue an unlawful dismissal claim in the Fair Work Commission.
A dismissed employee in Queensland that works for a local government entity can pursue an unlawful dismissal claim in the Fair Work Commission.
Get in touch with the staff at Unfair Dismissals QLD for a free consultation. We will listen and provide the correct advice on how to move forward with your unfair dismissal case.
Please understand that the sooner you contact us the sooner we can help you move forward.