Employers will be aware that an employee is ineligible to make an Unfair Dismissal claim, if terminated within the employee’s Minimum Employment Period (‘MEP’).
This article provides employers with a high level overview of the other external claims that an employee (including casuals) could lodge if terminated within their MEP.
Unfair Dismissal Claims
Employers will know that not every employee can make an Unfair Dismissal claim with the Fair Work Commission (‘the Commission’). This is because there are certain exclusions written into the Fair Work Act 2009 (‘the Act’). Relevant to this article is the requirement that an employee must complete the Minimum Employment Period (‘MEP’). The Act defines the MEP as:
- 6 months continuous service; or
- 12 months continuous service for small business employers (business with less than 15 employees).
Periods of service as a casual count towards the MEP if:
- the employee was a regular casual employee; and
- the employee had a reasonable expectation of ongoing employment on a regular and systematic basis.
Other External Claims
These exclusions do not apply to General Protection claims with the Commission or Discrimination claims. An employee can lodge a General Protection claim or Discrimination claim even if they have been employed for 1 week.
A General Protection claim can be about a range of matters that resulted with termination of the employee’s employment. More commonly, a former employee will lodge a General Protection claim on the basis of the employer has taken adverse action against the employee (the adverse action being the termination of employment) because the employee has a workplace right. Examples of workplace rights include accessing leave and lodging complaints relating to safety, bullying, pay.
A Discrimination complaint can be made to the Commission (as part of a General Protection claim), the Queensland Human Rights Commission or the Australian Human Rights Commission. A complaint may be made by a former employee if they believe that they were terminated because of a protected attribute they have or believe to have. Examples of protected attributes under state and federal discrimination legislation include sex, relationship status, pregnancy, age, race, impairment.
It is important to note that employees may lodge these claims with regards to any adverse action taken by their employer (e.g. warnings or other decisions regarding employment), and not just for termination of employment.
The QHA has additional information available for members regarding these claims in the QHA’s:
NOTE: There are additional claims an employee could lodge if dismissed in relation to an accepted workers compensation injury.
Where an employee lodges a General Protections or Discrimination claim, the employer must demonstrate that the reason for the dismissal was not discriminatory, or in breach of the General Protections provisions (depending on the type of claim made).
If an employer is found to have terminated the employee for an unlawful or discriminatory reason, the employer may be ordered to pay compensation to the employee.
To mitigate the risk of General Protections claim or Discrimination complaint, employers are recommended to:
- Ensure they undergo a procedurally fair process in dismissing the employee. This includes, informing the employee of your concerns, allowing them to respond, and informing them of the reason for termination;
- Ensure the reason for termination is:
- related to specific performance, conduct or operational reasons;
- is not in breach of a General Protection;
- is not because of a protected attribute.
- Seek advice from the QHA’s Employment Relations team regarding the dismissal.
QHA members seeking more information or wishing to discuss a specific employment relations matter are encouraged to contact the Employment Relations Department for a confidential discussion by calling 07 3221 6999 or emailing email@example.com.