The Law Handbook 2024

1068 Section 11: Rights, activism and fair treatment at work For the purpose of the unfair dismissal provisions, a person is not considered to be dismissed if: • they were employed under a contract of employment for a specified period, or a specified task, or a specified season, and the employment ended at the end of the period, task or season; • they were employed under a training arrangement for a specified period or for the period of the training and the employment ended at the end of the training; or • they were demoted but the demotion did not involve a significant reduction in their remuneration or duties (s 386). If a person has not been ‘dismissed’ for the purposes of the FW Act, they cannot make out the necessary elements of section 385 of the FW Act for the termination to be an unfair dismissal. The dismissal was harsh, unjust or unreasonable In deciding whether an employee’s termination was harsh, unjust or unreasonable, the following factors must be considered (s 387 FW Act): • whether there is a valid reason for the dismissal that is connected with the employee’s capacity/ conduct; • whether the employee was notified of the reason for the dismissal relied on by the employer; • whether the employee was given an opportunity to respond to the allegations made in relation to the employee’s conduct or performance; • whether there was any unreasonable refusal by the employer to allow the employee to have a person to assist in discussions related to the termination; • if the termination was related to the employee’s performance, whether warnings were given to the employee; • the degree to which the size of the employer’s business impacted on the procedures followed in effecting the termination; and • the degree towhich the absence of dedicatedhuman resource management specialists impacted on the procedures followed in effecting the termination. The dismissal was not consistent with the Small Business Fair Dismissal Code Under the Small Business Fair Dismissal Code (‘ Dismissal Code ’), a person’s dismissal is consistent with the Dismissal Code if the employer was a ‘small business employer’ at the time of the dismissal and the employer complied with the provisions of theDismissal Code in relation to the dismissal (s 388 FWAct). Since 1 January 2010, the definition of ‘small business employer’ has been a business with less than 15 employees (s 23 FW Act). The number of employees includes the employees of related and associated entities of the employer. The Dismissal Code states that a dismissal is fair where the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Therefore, under the Dismissal Code, an employer does not need to prove the misconduct actually occurred. If the employer is a small business employer and the employer complied with the provisions of the Dismissal Code, the termination is deemed to be fair and the elements of an unfair dismissal required for section 385 of the FW Act will not be made out. If the small business employer has not complied with the Dismissal Code, then the necessary elements of section 385 will be made out and the employee may be able to apply for unfair dismissal. A copy of the Dismissal Code is available on the FWC’s website ( see www.fwc.gov.au/issues-we-help/ small-business-hub/dismissal-rules-small-business- owners) . The dismissal was not a genuine redundancy A person’s dismissal is a genuine redundancy if the following requirements are met (s 389 FW Act): • the person’s employer no longer requires the person’s job to be done by anyone because of changes in operational requirements; • the employer, in dismissing the employee, complied with any consultation obligations in a modern award or enterprise agreement; and • it was not reasonable to redeploy the person within the employer’s enterprise or within an associated entity. If a person’s dismissal is a genuine redundancy, the person cannot make out the required element of section 385 of the FW Act for the dismissal to be an unfair dismissal. People protected from unfair dismissal A person must be protected from unfair dismissal to be eligible to apply for a remedy for unfair dismissal.