Fair Work Act 2009 [FWA], Act No. 28 of 2009, dated 7 April 2009 as amended up to Act No. 180 of 2018, 12 December 2018 Date: 12 Dec 2018; view website »
Fair Work Regulations 2009 [FWR], Select Legislative Instrument 2009 No. 112 dated 18 June 2009, as amended up to the “Fair Work Amendment (Casual Loading Offset) Regulations“ 2018, 18 December 2018 Date: 18 Dec 2018; view website »
Small Business Fair Dismissal Code (2009) declared on 24 June 2009 pursuant to subsection 388(1) of the Fair Work Act 2009 Date: 24 Jun 2009; view website »
Obligation to provide reasons to the employee: Yes
The FWA does not establish as such a general obligation to provide reasons before any dismissal. However, this obligation is implied since notification to the employee is one of the criteria to be considered by the Fair Work Commission (national workplace relations tribunal) when assessing whether the dismissal was harsh, unjust or unreasonable (= test for unfair dismissal). S387 provides that "In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take account: (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason ; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that FWC considers relevant."
Note that the harsh, unjust or unreasonable test does not apply to small business employers (less than 15 employees). It is sufficient for those employers to comply with the Small Business Fair Dismissal Code: For dismissals other than summary dismissals, "the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations."
Valid grounds (justified dismissal): any fair reasons
See s385 to s389 FWA that set up the elements that make up an unfair dismissal. Consequently, a fair dismissal means: 1) a dismissal which was not harsh, unjust or unreasonable; and 2) a dismissal which was consistent with the Small Business Fair Dismissal Code; and 3) the dismissal which was a case of genuine redundancy.
1) s387 sets out the criteria to be considered by the competent body (Fair Work Commission) when assessing whether the dismissal was harsh, unjust or unreasonable. This includes whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees) in addition to other factors related to procedural fairness.
2) Dismissal consistent with the Small Business Fair Dismissal Code (applicable to employers with less than 15 employees). This code regulates summary and other dismissals. - With regards to summary dismissal, the code stipulates that: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal". - For other dismissals, the code provides for an obligation to give the employee a reason why he or she is at risk of being dismissed. "The reason must be a valid reason based on the employee's conduct or capacity to do the job". In addition, for the dismissal to be fair, the employer must observe procedural requirements (prior warnings, opportunity to respond and giving a chance to rectify the problem). (see s388 FWA and Small Business Fair Dismissal Code)
3) Fair dismissal by means of genuine redundancy (s389 FWA): There is a case of genuine redundancy if: "(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (= fair reason); and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (= procedural fairness)"
Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; sexual orientation; religion; political opinion; social origin; age; trade union membership and activities; disabilities; parental leave; adoption leave
Regarding the above list of prohibited grounds: - "Family responsibilities" should be understood as covering "Family or carer's responsibilities"; - "Temporary work injury or illness" should be understood as covering "Temporary absence from work due to work injury or illness"; - "Social origin" should be understood as covering "National extraction or social origin"; and - "Disabilities" should be understood as covering "Physical or mental disabilities".
Part 3-1 of the FWA contains a set of general protections against discriminatory or wrongful treatment which includes but is not limited to protection against dismissal on certain grounds. See in particular: - s340 FWA that prohibits adverse action (which includes dismissal) against another person in relation to the exercise of workplace rights (as defined in s341 FWA); - s346 FWA that prohibits adverse action (which includes dismissal) against another person in relation to industrial activities; - s351 FWA on discrimination; - s352 FWA on prohibition of dismissal on the grounds of temporary absence from work because of illness or injury. Employees who believe to have been dismissed in contravention with the "general protections provisions" of the Act, can apply to Fair Work Commission to deal with the dismissal.
The Act also contains a special provision on unlawful termination: s772 FWA makes it unlawful for an employer to terminate an employee's employment for certain reasons. However, employees are barred by s723 from lodging a complaint of unlawful termination if they are entitled to make a general protections court application in relation to the conduct. Therefore, unlawful termination applications are only available to workers employed by Western Australian corporations whose main activity is not trading or financial or Western Australian sole traders, partnerships, or other unincorporated entities.
Workers enjoying special protection: no protected groups
No statutory provisions providing for special protection found in the legislation reviewed.