Hiring and sacking is definitely not the sole discretion of employers, it has to be understood that there are certain rights that you as an employee have with regard to workplace dismissal in Australia. It is against the law in this country to dismiss you or choose you for redundancy on reasons that are attributable to certain personal characteristics. Such eventualities are covered by federal anti-discriminatory laws and Equal Opportunity Act 2010. However, clauses under this Act do not include dismissal due to unsatisfactory work performance or if the employer has genuine operational and financial reasons for doing so.
What then are your rights as a worker regarding unfair dismissal in Australia?
- Age of retirement – You cannot be asked to retire or be retired if you have reached a certain age until of course a certain retirement age is part of your service regulations. If your employment contract says that your age for retirement is 60, you cannot be asked to retire at 55, neither can you be threatened to do so. Your workplace environment too cannot be made so bad that you are forced to quit. These are covered by the Human Rights Commission under mature age workers and the Equal Opportunities Act. If you feel that you your workplace rights have been affected you can contact Melbourne small business lawyers or those in the State of your workplace for proper advice and guidance.
- Dismissal for injury – As per the Commission, a worker cannot simply be dismissed because of an injury. It is against the law. However, you may be offered medical retirement provided certain stipulations are met by the employer. This includes, meeting the provisions of workers’ compensation legislation, anti-discriminatory laws and following the relevant award or workplace agreement. Your employer should also institute an independent medical board to determine your condition and know your fitness to work. If it is deemed that you will henceforth be an unacceptable risk to safety at the workplace or no amount of reasonable adjustments will be enough to help you continue to work, dismissal will not be seen to be unfair in law.
Once you feel that you have been unfairly dismissed by your employer, you have to follow certain pointers for appealing to the Commission against this act. However, due to the many complexities, it is always recommended that you get in touch with specialist lawyers with known expertise in unfair dismissal cases. Law firms offering property legal advice in Melbourne or in any other city also have lawyers that are fully conversant with this branch of law and you will do well to contact them too.
It has to be kept in mind that you have to apply to the Commission as soon as possible after dismissal and definitely within 21 days of it taking effect. There is also a minimum employment period in these cases. You must have been employed for a minimum period of 6 months and for small business a minimum of 12 months. If in between, there has been a change in ownership of your firm, the service with the first employer will count as service rendered while calculating this period. You also have the right to apply to the Commission in case of unlawful termination or a breach of general protections.
If you are not sure what to do in case of unfair dismissal, you can get information on the process by visiting the Commission website or downloading the Commission’s Unfair Dismissal Bench-book. Small business owners can download the Small Business Fair Dismissal Code checklist to ensure that they are always on the right side of the law.