Recently, Attwood Marshall Lawyers has fielded numerous inquiries from employees regarding possible claims for unfair dismissal. In the current market, it is imperative that workers understand their rights and that employers talk to their staff if their business is suffering, explains Attwood Marshall Lawyers Commercial Litigation Associate Georgia Taylor.
Introduction
There were certain industries that buckled under the pressure of COVID-19 over the past two years, whilst others thrived and experienced an influx of new workers to facilitate the additional activity in this space. Unfortunately, the later was lesser experienced and the Fair Work Commission saw unfair dismissal claims skyrocket by 70%.
The most impacted industries, according to the Australian Bureau of Statistics, were hospitality, tourism, and accommodation.
The industries that unexpectedly thrived during the pandemic included the real estate sector with thousands of people migrating North, building and construction with many people taking the opportunity to renovate or build their dream home, and e-Commerce and freight services with more people shopping from the comfort of their homes, shifting how goods were sold and purchased.
With demand in these sectors quickly growing, many professionals took the opportunity to upskill or change jobs to reap the rewards of an everchanging market.
The real estate sector onboarded an abundance of new workers to meet demand, however, now that the market is cooling off, this may be a warning of employment disputes to come as certain businesses need to adapt to a decline in activity and address overstaffing issues.
We have already seen an increase in the number of inquiries received from employees regarding claims of unfair dismissal, which stretch across all industries, and we expect to see these types of disputes continue to escalate as businesses are forced to restructure and re-evaluate their viability in the current marketplace.
What is unfair dismissal?
The Fair Work Act (Cth) (Act) governs employment relationships between an employer and their employee. The object of the legislation is to provide a balanced framework that helps prevent discrimination against employees and promotes fairness for both employees and employers.
Employers are obligated to follow guidelines and ensure that an eligible employee is only being dismissed on fairgrounds. If the correct procedure is not obeyed, there is a risk that the employee could lodge a successful claim against the employer for unfair dismissal.
An employee has been dismissed if the employer terminates their employment or if the employee resigns because of their employer’s conduct, which is considered constructive dismissal.
An employee could be taken to be unfairly dismissed when:
- the dismissal was unjust, harsh, or unreasonable
- the dismissal was not due to genuine redundancy
- where the employer is a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code
For a claim of unfair dismissal to be successful, an employee must be eligible under the following criteria:
- They must have been employed for a minimum period as stated in their employment agreement. For permanent employees, the period is usually six months of ongoing employment to be completed before the dismissal took place. 12 months will apply if the employer is a small business that has less than 15 employees. For casual employees, six months of regular and systematic employment and a reasonable expectation of continued employment on this basis have been completed before the dismissal took place. Again, a 12-month period will apply in this instance if the employer is a small business with less than 15 employees.
- The employee must earn less than the high-income threshold set by the Fair Work Act 2009 unless they are covered under a modern award or enterprise agreement. Since 1 July 2022, the threshold is $162,00 per year. The high-income threshold increases each year on July 1.
A case of unfair dismissal
Recently, the Fair Work Commission awarded a real estate agent $15,000 in compensation, after finding her employer used redundancy as an excuse to fire her.
In the case of Sarah Cruise v Baxter Cassidy Pty Ltd T/A Ray White Langwarrin [2019] FWC 1751, the Assistant Property Manager was made redundant in 2018 after she had worked for the agency for over three years.
Management claimed they planned to make the role redundant, replacing the position with a permanent position purportedly involving the same duties. Management stated the reason for the redundancy was to improve “the level of service provided, and time dedicated to the property management department.”
However, the Commission determined this was not a legitimate case of redundancy because the agency:
- failed to consult with their employee regarding the specifics of the new role
- failed to consult with their employee about her family responsibilities (Under the Sex Discrimination Act 1984 (Cth) family responsibilities are the responsibilities of a person to care for or support: a dependent child of the person, or any other immediate family member who needs care and support.
- did not send correspondence with sufficient details about the consultation procedure; and
- the procedure was not authentic because it offered the employee an alternative position she would almost certainly decline, given her family responsibilities and the lower pay rate.
In this case, the Commission found that the employers failure to consult with their employee caused the dismissal to be unfair and not a genuine redundancy and was harsh, unjust and unreasonable.
The former employee was awarded compensation to the value of $14,578.11.
Time limits for making a claim
There is a firm 21-day time limit from the date of dismissal that applies to making unfair dismissal claims. A claim submitted outside this period will only be considered by the Fair Work Commission or a State Commission in exceptional circumstances. It’s imperative to seek legal advice as soon as possible if you suspect you’ve been unfairly dismissed to avoid missing out on making a claim and to understand what options are available to you.
Attwood Marshall Lawyers – helping you resolve disputes effectively
At Attwood Marshall Lawyers, our employment law experts are focused on helping workers from all fields resolve disputes that arise in the course of their work.
Our team understand that employees are often put in situations that mean they are at a disadvantage when disputing a work-related matter with their employer. There is often a power imbalance that’s associated with these circumstances. Employers have the upper hand as they know that employees rely upon their work for financial security. In addition, employers tend to have the support of human resources staff and procedures ready to access when needed.
If you would like more information or want to obtain the best possible chance of a successful outcome in your dispute, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.
Read more:
Commercial litigation and class actions have erupted in the COVID era
Will 2022 be the year for mass insolvencies?
How businesses can recover debts during COVID-19
