Dismissal for non-award employees

The Industrial Relations Act 1999 (PDF, 1.9MB) includes provisions about dismissal that aims to ensure a system that balances fairness to employees with the needs of employers to dismiss employees when there is a good reason.

All employees have the right to make an application to the Queensland Industrial Relations Commission (the Commission) if they feel they have been unfairly dismissed.

When is a dismissal unfair?

A dismissal is unfair if it is:

harsh, unjust or unreasonable (i.e. the procedure was unfair), or
for an invalid reason (i.e. the reason itself was unfair or discriminatory).

There are certain classes of employees who are excluded from the unfair dismissal provisions including:

Probationary employees

All employees are considered to be on probation for the first 3 months of their employment. An employer and employee may make a written agreement before employment starts to have a longer period of probation - provided that period is reasonable in relation to the circumstances of the employment.

Note: probationary employees are not excluded from the unfair dismissal provisions if they are dismissed for an invalid reason.

Short term casuals

This is a casual who has been employed for less than 12 months, is not employed regularly and systematically and has no reasonable expectation of continued employment

Note: short term casual employees are not excluded from the unfair dismissal provisions if they are dismissed for an invalid reason.

Employees engaged for a specific period or task

Note: such employees are not excluded form the unfair dismissal provisions if the main purpose of engaging the employee in that way at the time of engagement was to avoid the unfair dismissal provisions.

Employees earning wages of more than $106,400 per year

An employee who is not employed under an industrial instrument and who is not a public service officer employed on tenure under the Public Service Act and whose annual wages immediately before the dismissal are more than $106,400 is excluded from the unfair dismissal provisions.

Apprentices or trainees

Apprentices and trainees are excluded from the unfair dismissal provisions. All training contracts for apprentices and trainees are subject to the Vocational Education, Training and Employment Act 2000 (PDF, 1.04 MB). For more information, refer to the Department of Education, Training and the Arts' fact sheet on completing the training contract.

Harsh, unjust or unreasonable dismissals

In considering whether a dismissal was harsh, unjust or unreasonable the Commission will take the following matters into account:

was the employee notified of the reason for the dismissal, and
whether the dismissal related to
- the operational requirements of the employer's business (i.e. position no longer required), or
- the employee's conduct, capacity or performance (i.e. the employee is not working or acting in the way required by the employer); and
if the dismissal is related to their conduct, capacity or performance, was the employee given
- a warning, or
- an opportunity to respond to allegations, and
any other matters considered relevant by the Commission.

Even if a dismissal is carried out in accordance with the above considerations, it might still be regarded as harsh, unjust or unreasonable if there was not a good enough reason to justify dismissal.

Invalid reasons for dismissal

The legislation lists a number of specific issues as invalid reasons for dismissal including:

temporary absence from work because of illness or injury (i.e. any period of paid sick leave or unpaid sick leave not exceeding 3 months in any one year)
pregnancy, adoption or birth of a child
absence on, or application for, parental leave
discrimination on the basis of sexual preference or family responsibilities or which contravenes the Anti-Discrimination Act 1991 (PDF, 820 kB)
seeking office, or acting, or having acted as an employee's representative
membership or non membership of a union or taking part in union activities
filing a complaint or taking part in legal proceedings against an employer
failing to comply with conditions of employment that stipulate how, where or with whom wages are to be spent.

Remedies for unfair dismissal

If the Commission considers that an employee has been unfairly dismissed they may make the following orders:

reinstatement of the employee to their former position, or
re-employment of the employee in another position considered suitable, or
compensation to the employee if reinstatement or re-employment is not practical - up to a maximum of 6 months wages.

Dismissal of 15 or more employees

If an employer intends to dismiss 15 or more employees for economic, technological or structural reasons the Act requires certain steps to be taken in relation to all employees.

Before such dismissals take place, the employer is required to notify:

each union of which any of their employees is a member, and
the Commonwealth department/agency whose primary function is helping unemployed people find work (currently Employment National)

and provide the following details:

the number and categories of employees to be dismissed; and
the reasons for the dismissals; and
the time when, or the period over which, the employer intends to carry out the dismissals.

Each union of which any affected employee is a member should also be given an opportunity to consult with the employer on ways to:

avoid or minimise the dismissals; and
minimise the adverse effects of the dismissals.

Last updated: 28 August 2008

Employment conditions