The dismissal provisions of the Industrial Relations Act 1999 (PDF, 1.9MB), although excluding certain classes of employees, apply to employees whether or not they are covered by any award or agreement. The Act requires that employees are treated fairly in accordance with the principles of natural justice and procedural fairness balanced against the right of employers to dismiss an employee for legitimate reasons.
The following are the common reasons for dismissal that may end an employer and employee relationship:
Common Reasons for Dismissal |
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To avoid, as much as possible, accusations of unfair dismissal in relation to conduct, capacity or performance issues the following general principles, based on considerations of procedural fairness, should be remembered:
An employer can dismiss an employee without notice - 'if the employee engages in misconduct of a type which would make it unreasonable to require the employer to continue the employment during the notice period' (s83).
The Act defines misconduct to include particular actions. However, dismissal without notice or pay in lieu is only permissible if the misconduct is of a serious nature. There may be misconduct by an employee that will justify termination of employment but would still require the giving of notice or payment in lieu.
It is important to consider the degree of seriousness of any misconduct and the context in which it took place in deciding to dismiss without notice or pay in lieu.
It should be noted that an act of misconduct does not in itself terminate the employment relationship. It gives the employer the right to terminate the employment if he or she feels that this is warranted.
In terminating an employee without notice for misconduct, an employer should still follow proper procedures so that the dismissal would not be seen as harsh, unjust or unreasonable (i.e. the employee must be notified of the reason for the dismissal and given a warning about, or opportunity to respond to allegations about their conduct).
Each case of misconduct must be decided on its own particular merits.
An employee dismissed for serious misconduct is not entitled to notice or wages in lieu of notice. They are to be paid all wages and accrued entitlements up to the point of dismissal.
What is misconduct?The Act (s83) defines misconduct by an employee as including theft, assault and fraud. The definitions in the Act should not be seen as an exhaustive list of the only actions by an employee that may qualify as misconduct. Case law indicates that actions falling under a number of broad categories like those listed below might also be viewed as misconduct in certain circumstances:
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An employer may be aware of an employee's act of misconduct and decide not to take action. That employer is said to have condoned the misconduct, and can not at a later date dismiss the employee for that act.
When a case of misconduct is brought to an employer's attention, a reasonable opportunity of investigating the case is allowed. However, the employer must act as soon as reasonably possible. The employer runs the risk of being seen to condone the act if prompt action is not taken.
In one case determined by the Commission, an employer was held to have lost the right of dismissal for misconduct which occurred during the lunch hour one day because the employee was not dismissed until the close of business on the following day. Provided an employer has had an opportunity to investigate the matter and to exercise the right of dismissal, 24 hours is considered sufficient time in which to act.
The term 'constructive dismissal' is generally understood as being a resignation from employment caused by words or actions by the employer that have lead the employee to believe they have no choice other than to resign.
Examples of a constructive dismissal might include:
A resignation as a result of such matters might be viewed by the Commission as a dismissal and therefore subject to all conditions relating to dismissal procedures and remedies for unfair dismissal.
The Act provides that, in certain circumstances, dismissal because of an employee's absence from work is either invalid or unlawful (e.g. temporary absence due to illness or injury, parental leave or avoiding obligations to pay for leave).
As regards other absences, it may be seen as unfair to dismiss an employee with an otherwise good record of work attendance for a single unauthorised absence. On the other hand it may be reasonable to dismiss an employee with a record of persistent and unexplained absences. Similar comments can be made about an employee's failure to notify the employer about a single absence compared to persistent failures after firm instructions have been given on the necessity for such notification.
In a situation where an absence lasts for several days with no contact from an employee, the employer is not necessarily justified in treating this situation as a resignation by the employee.
In such cases of 'abandonment of employment' 
it is suggested that employers attempt to contact the employee asking them for a reason for their non-attendance and warning them that if there is no reasonable excuse that they will be dismissed. Depending on what reply, if any, is received from the employee, the employer would then need to consider whether dismissal in the particular circumstances would be justified and fair.
Records of an employee's work history including absences and of the warning/counselling procedures carried out prior to such a dismissal are of great importance in considering whether a dismissal for such reasons is fair. Reasons for the absence or absences also need to be taken into account.
Generally, dismissal because of criminal charges against the employee is only justified if the situation results in the employee being unable or not fit to perform their work.
The employer may be justified in dismissing the employee if the criminal charges affect the ability of the employee to work, either because of legal sanctions (e.g. loss of a driver’s license by a truck driver) or otherwise (e.g. imprisonment preventing attendance at work).
Certain criminal charges, even though not directly connected with the employment, may be of such a serious nature that they constitute serious misconduct. For example, where an employee is placed in a position of trust in relation to handling monies, a charge of theft might show untrustworthiness that may justify an employer in dismissing the employee.
Anecdotal evidence suggests the most common forms of dishonesty experienced by employers are theft and misrepresentation of prior work experience.
Employers considering dismissal of an employee due to some form of dishonesty should take care that they have conducted a reasonable investigation into the matter and any surrounding circumstances - including giving the employee a chance to respond to any allegations. Dismissals must be based on facts gathered and considered with an open mind - not on suspicions. The degree of seriousness of the dishonesty should also be taken into account in considering dismissal.
An employer’s human resource management documentation may contain a drug and alcohol policy. A certified agreement operating at the workplace may also contain a clause about drug or alcohol testing. Compliance with the conditions contained in such documents is a consideration in termination cases.
A previous federal Workplace Relations Regulations regarded an employee as being intoxicated if their faculties were impaired to the extent that they were unfit to be entrusted with normal duties or any other duty they could be called on to perform.
Intoxication that affects an employee’s ability to perform work to set standards or endangers themselves or fellow workers, may justify dismissal. If the intoxication is of a serious nature in terms of its effect on the business it might even qualify as serious misconduct justifying instant dismissal without notice.
Factors that an employer should take into account in considering dismissal because of intoxication include:
In considering dismissal for unsatisfactory performance, including incompetence or negligence, the employer should always take into account whether an employee clearly understands what is expected regarding the way in which a job is carried out and the quality and quantity standards required by the employer. It is also important that employees clearly understand the consequences to the business of making a mistake.
Single instances of incompetence or negligence would not normally justify dismissal. Single instances could (and arguably should) lead to the employer instituting some form of warning or counselling of the employee about their performance.
Dismissal might be justified where it can be reasonably proved that an employee was wilfully negligent or was shown to be incompetent due to misrepresentation of prior experience.
Factors that an employer should take into account in considering dismissal because of perceived incompetence or negligence include:
Disobedience might justify dismissal if it is shown that the employee acted deliberately to disobey a clear instruction from the employer. A persistent pattern of disobedience might also justify dismissal.
Dismissal because of a single act of disobedience, especially one of a minor nature, could be viewed as unfair. It is probably much more appropriate to treat disobedience of instructions, except those of a serious or persistent nature, as an action that should lead to a warning or counselling process about the employee’s unsatisfactory conduct.
Employers should ensure that any disciplinary policy or counselling process related to disobedience is applied consistently.
In relation to the use of offensive language, various industrial tribunals have adopted the principle of 'people, not angels'. Usage of language changes over time as does society's acceptance of certain words. There is also a recognition that work situations put employees under pressure to the extent that they may use inappropriate language in the heat of the moment. Therefore the circumstances surrounding the use of offensive language need to be taken into account in considering any dismissal process.
There will be certain instances of swearing or verbal abuse that might justify dismissal. For instance verbal abuse of a customer in a retail setting can have serious ramifications for the reputation, viability or profitability of the employer’s business and would be viewed quite seriously. Persistent or threatening verbal abuse of one employee by another might also be viewed quite seriously as it could amount to harassment or result in fear of assault by the abused employee.
Like other conduct issues, the isolated use of offensive language should be kept in context and is likely to be more appropriately dealt with in warning or counselling process or as part of a code of conduct communicated to all employees.
When a decision is taken by the employer to dismiss the employee 'on the spot'. May also be known as 'instant dismissal'.
A fixed term contract is a contract of employment that has a beginning and end date of completion. It is recommended an employer notify the employee of the impending expiry date of the contract. It is then up to the employer and employee to renew their arrangement and negotiate a new contract of employment. It is recommended that any such arrangements be in writing, including any provisos that may allow the contract to be terminated earlier by either party. Employees on fixed-term contracts are often employed on project work or relieving an employee absent on parental leave or long service leave.
View out resource page for apprentice and trainee information on this topic.
Redundancy occurs when an employer decides that the job an employee has been doing is no longer needed. This decision is based on circumstances other than the ordinary and customary turnover of labour.
View our redundancy resource page to find out more on this topic.
An employer may downsize their business and reduce the number of staff employed. The employer normally would ask all employees if they would be interested in accepting voluntary redundancy (also referred to as the 'golden handshake'). An employer and an employee may agree to a lump-sum payout, based upon their length of continuous service, in lieu of ongoing employment. Other entitlements, such as long service leave and annual leave due would also be payable.
View our introduction of changes in the workplace resource page to find out more on this topic.
Terminating employment by giving of notice, instant dismissal or resignation are not the only ways an employment contract can end. The employer’s business could be destroyed by flood making it impossible for work to be performed. An employment contract could also be terminated by the death of an employee or an employer who is the sole member of the business.
A contract of employment can "frustrate itself" and come to an end if an employee's illness or injury prevents them from working for a considerable time or where time is of the essence regarding the performance of duties under the employment contract.
Permanent incapacity caused by illness justifies the employer in treating the contract as ended. In one case decided by the Commission, a boilermaker injured his back on 3 August 1955. The injury meant he could never work as a boilermaker again. The contract was frustrated by such permanent injury and came to an end on 3 August 1955 i.e. the day of injury and last day worked albeit that the extent of the injury may not be known until a later date.
Temporary illness can end the employment contract if the resulting incapacity frustrates the purpose of the employment. For example, a pianist employed to play daily for three weeks in a Christmas Pantomime may sustain a broken arm in a car accident. The injury is really of a temporary nature but the purpose of employing that employee is frustrated. The contract can be treated as ending from the day of the injury.
In cases of "frustration of contract", it is not necessary to give the prescribed notice.
Wageline's fact sheet on:
Dismissal from employment:
Redundancy:
Queensland Industrial Relations Commission regarding unfair dismissal procedures
Anti-Discrimination Commission Queensland to lodge a complaint for discrimination
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