Unfair dismissal

17.108 Under the unfair dismissal provisions of the Fair Work Act, a person is dismissed if their employment has been terminated on the employer’s initiative.^[99]An employee is unfairly dismissed if the dismissal was ‘harsh, unjust or unreasonable’, was not consistent with the Small Business Fair Dismissal Code (if it applies), or was not a case of genuine redundancy.^[100]

17.109 Not all employees have access to unfair dismissal remedies under the Fair Work Act. Unfair dismissal is available to employees who have completed a 12-month or six-month period of employment with an employer,^[101] and who are covered by a modern award, enterprise agreement or earn less than the ‘high income threshold’.^[102] Casual employees may only access unfair dismissal remedies if they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.^[103]

17.110 The Explanatory Memorandum to the Fair Work Bill provides that the requirement that an employee serve a minimum employment period before having access to an unfair dismissal remedy enables employers to

have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period.^[104]

17.111 However, in light of the disrupted work history of many victims of family violence and the casualised nature of the victim labour force, there are concerns that existing unfair dismissal provisions may offer limited protection to many victims of family violence, given the qualifying requirements.

17.112 An application for unfair dismissal must be lodged with FWA within 14 days of the dismissal.^[105] The Explanatory Memorandum to the Fair Work Bill indicates that the aim of the reduced application time is to ‘promote quick resolution of claims and increase the feasibility of reinstatement as an option’.^[106]

17.113 However, in ‘exceptional circumstances’, FWA may grant a further period within which to make an application.^[107] In determining whether there are exceptional circumstances, FWA must take into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.^[108]

17.114 The Explanatory Memorandum to the Fair Work Bill states that the principal aim of the unfair dismissal framework is ‘balancing the needs of business and employees’ and the object is to ‘provide a quick, flexible and informal process for the resolution of unfair dismissal’.^[109]

17.115 In considering whether an individual dismissal is harsh, unjust or unreasonable, FWA must consider a range of factors, and may consider any other matter it deems relevant.^[110]

17.116 There are very few matters in which family violence has been raised before industrial tribunals in Australia.^[111] It is likely this arises in part due to the reluctance and barriers to disclosure discussed in Chapters 4 and 14. It may also arise as termination of employment occurs on the basis of other factors, the underlying cause of which may be family violence (of which the employer is often unaware). For example, where family violence has an impact on performance.

17.117 However, as the majority of unfair dismissal matters settle at conciliation, there is limited publicly available data on the basis for applications and, as a result, it is difficult to gauge the frequency with which family violence is a factor in unfair dismissal.^[112] Data collection issues with respect to unfair dismissal are discussed in chapter 14.

Submissions and consultations

17.118 In the Employment Law Issues Paper, the ALRC noted that the terms of s 387 of the Fair Work Act may already be broad enough to cover consideration of family violence but expressed interest in submissions on the extent to which an employee’s experience of family violence is or could be considered in unfair dismissal cases as part of the ‘harsh, unjust or unreasonable’ formulation in practice.

17.119 The ALRC also noted several concerns with respect to access to unfair dismissal for those experiencing family violence, primarily in relation to the requirement that an employee serve a minimum employment period before having access to an unfair dismissal remedy.

17.120 Most stakeholders indicated that family violence is rarely raised in unfair dismissal matters, for a range of reasons arising from:

• reluctance to disclose family violence due to fear, or concern about responses to the disclosure;

• lack of time or emotional energy to pursue a claim; and

• concern about the way in which the matter will be handled.^[113]

17.121 ACCI expressed the view that:

It is unclear why unfair dismissal laws would impact directly on workers experiencing domestic violence, as distinct from a worker experiencing, as but one example, being a victim of crime generally. ACCI is unaware of any case whereby an employee has been dismissed because they are experiencing domestic violence (even if that were to be an employer who also happened to be a spouse or parent). In saying that, FWA is able to take into account all circumstances leading up to the termination of employment, including whether there was a valid reason for termination.^[114]

17.122 Stakeholders also emphasised that, in many cases, termination of employment occurs on the basis of other factors, the underlying cause of which may be family violence, and as a result the application focuses on the manifestations without necessarily involving disclosure of the existence of family violence.^[115] For example, the NNWWC commented:

Where there are other factors present to argue a dismissal has been harsh, unjust or unreasonable our advocates would most likely stick to these but this does not address the power of silencing the issue of family violence and prevents it from ever gaining legitimacy as a genuine consideration when a woman experiencing family violence is terminated.^[116]

17.123 Some stakeholders expressed the view that the harsh, unjust or unreasonable formulation is already sufficiently broad to allow consideration of an employee’s experience of family violence in an unfair dismissal matter if it were raised.^[117]

17.124 Several stakeholders emphasised that victims of family violence often have a disrupted work history and, as a result, are often precluded from making an unfair dismissal application not having satisfied the minimum employment period requirement.^[118] The ADFVC suggested this potentially excludes ‘the most vulnerable workers’ and recommended that the ‘current qualifying periods and requirement of regular and continuous service with respect to casuals should be removed with respect to victims of family violence’.^[119]

17.125 The 14 day time limit within which an application for unfair dismissal must be lodged, except in ‘exceptional circumstances’, was also raised by stakeholders as a concern. For example, the ADFVC expressed the view that the time limit is particularly onerous for people experiencing family violence:

For some victims, unfair dismissal proceedings take a back seat to concurrent legal proceedings for family law, criminal charges against the perpetrator, or a protection order. This difficulty is compounded by the very short timeframe … the 14 day cut-off period is extremely onerous for applicants generally, and FWA has taken a strict approach in defining the circumstances in which an out of time application may be accepted, leaving many applicants without a remedy under the Act. In instances where victims of family violence are also dealing with other legal proceedings and under intense emotional strain, 14 days is unlikely to be enough time to seek legal advice and make an application.^[120]

17.126 As a result of these concerns, stakeholders suggested that family violence should be one of the factors to be considered by FWA in determining whether exceptional circumstances exist.^[121]

ALRC’s views

17.127 The ALRC considers that the ‘harsh, unjust or unreasonable’ formulation and the terms of s 387 of the Fair Work Act are sufficiently broad to allow consideration of an applicant’s experience of family violence if it were raised in the context of an unfair dismissal application.

17.128 While there is limited publicly available data on the basis for unfair dismissal applications, clearly there are a range of issues, in addition to general barriers to disclosure, adversely impacting on the willingness of applicant’s to raise family violence in the context of unfair dismissal applications.

17.129 A number of proposals in this Discussion Paper—to the extent that they assist in raising recognition and awareness of family violence as a workplace issue—may assist in ensuring unfair dismissal is increasingly seen and utilised as a means of recourse for victims of family violence who have their employment terminated unfairly. In addition, the ALRC considers that increased employer awareness, and family violence provisions that provide access to flexible working arrangements and leave, may in turn play a role in preventing dismissal in circumstances where the grounds for termination relate to workplace manifestations of family violence.

Eligibility requirements

17.130 The ALRC considers that the eligibility requirements for unfair dismissal applications, in particular in relation to the minimum employment period, may adversely affect victims of family violence, to the extent that they are more likely to have a disrupted work history. However, the ALRC also acknowledges the need for employers to have a period of time to assess the capacity and conduct of new employees without necessarily facing an unfair dismissal claim should they decide to terminate the employee’s employment.

17.131 While the ALRC proposes the removal of eligibility requirements in relation to requesting flexible working arrangements under the NES, it does so only in relation to requests made on the basis of experiencing family violence. The ALRC does not consider it is appropriate to propose a two-tiered system of eligibility for unfair dismissal. As a result, the ALRC does not intend to make any proposals in relation to the current minimum employment periods, or requirements in relation to casual employees, which govern eligibility to make an application for unfair dismissal.

Time limit for applications

17.132 The ALRC considers that the current 14 day time limit for unfair dismissal applications is likely to be particularly onerous for victims of family violence. However, the ALRC considers that FWA’s power to allow a further period for application in exceptional circumstances is likely to provide a mechanism through which victims of family violence may be granted additional time to make an application.

17.133 While the matters FWA must take into account in deciding whether exceptional circumstances exist appear to be sufficiently broad to allow consideration of family violence as contributing to the ‘reason for the delay’, the ALRC would be interested in stakeholder comments on the way in which FWA currently considers family violence-related matters in the course of determining whether there are exceptional circumstances.

17.134 To the extent that FWA takes a strict approach, as suggested by some stakeholders, the ALRC suggests that appropriate training of FWA members may assist to ensure that, where appropriate, family violence is considered in determining whether exceptional circumstances exist. The ALRC welcomes input from stakeholders as to the nature and content of any such training.