Unfair dismissal

Employees in South Australia are covered by the unfair dismissal laws contained in the Fair Work Act 1994 (SA) or the Fair Work Act 2009 (Cth), depending on the person who employs you, whether in private or public sector.

Private sector employees

Unfair dismissal claims by employees in the private sector must be made to the Fair Work Commission within 21 days of the dismissal. The Fair Work Commission must be satisfied that the dismissal is harsh, unjust or unreasonable and is inconsistent with the Small Business Fair Dismissal Code (for small businesses) and is not a case of genuine redundancy. Employees who are protected are employees who are on a continuous service of a minimum period of 6 months or 12 months (for small business). This includes casual employees who are employed on a regular basis.

For an unfair dismissal claim made by a small business employer to be successful, the Small Business Fair Dismissal Code must be satisfied. It is reasonable and fair for a small business employer to dismiss an employee under reasonable grounds such as serious misconduct which may also include an allegation of such misconduct. However, the small business employer must also provide valid reasons for the dismissal.

If an employee is found to be unfairly dismissed, compensation may be awarded if the Fair Work Commission is satisfied that reinstatement is unavailable or inappropriate.

Public sector employees

Unfair dismissal claims by employees in the public sector must be made to the Industrial Relations Commission of South Australia within 21 days of the dismissal. The Commission must be satisfied that the dismissal is harsh, unjust or unreasonable. Employees who are excluded from bringing an application include apprentices under training contracts, casual employees, probationary employees and others.

In the event the Commissioner decides the dismissal to be harsh, unjust or unreasonable, the affected employee may be ordered to be re-employed in your original position as re-employment is the preferred remedy whenever possible or available. However, if re-employment is unavailable, the affected employee may be re-employed in a different position or capacity. If both situations are impossible, the affected employee may be awarded financial compensation.

If you have are an employee wishing to make a claim or an employer who require advice regarding unfair dismissal, Straits Lawyers are here to help. We are now offering online services in both English and Chinese.

Simply book an online consultation with us via this link: https://straits-lawyers.square.site/product/online-consultation-/11?cs=true or email us at info@holawyers.com or call at 08 8410 9069 to arrange an appointment.

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Please note that this article does not constitute legal advice and HandO Lawyers will not be legally responsible for any actions you take based on this article.