A person who is unfairly dismissed from employment in Tasmania may have a claim either under state law or under federal law. The system an employee is covered by is determined by the employer they were working for. This page outlines the unfair dismissal laws that apply in Tasmania.
State vs federal law
A worker who is employed in the Tasmanian public service is covered by the State Service Act 2000. Private sector employees in Tasmania are covered by the federal Fair Work Act 2009. Local government employees in Tasmania fall under the federal employment system.
What is unfair dismissal?
A person is unfairly dismissed from employment if they are fired or let go under circumstances that are unfair and under circumstances that are not consistent with the Codes that regulate their industry. However, the situations under which a person will be found to have been unfairly dismissed are quite different under the state and federal system.
Unfair dismissal and the public sector
If a person works in the public sector in Tasmania, the provision that governs unfair dismissal is section 44 of the State Service Act 2000. Under that section, a permanent employee is unfairly dismissed if they are dismissed for any reason other than the following:
- That they have breached the Code of Conduct;
- That the Head of Agency has requested the Minister to terminate the person’s employment;
- That the person is found to be unable to efficiently and effectively perform their duties;
- That they are not performing their functions to the standards and requirements identified in the performance management plan;
- Any other ground prescribed by regulations.
Tasmanian Industrial Commission
An employee who has been dismissed from the Tasmanian public sector may ask the Tasmanian Industrial Commission to review the matter. This application must be made within 21 days of the date of the dismissal.
The Commission has the power to conduct alternative dispute resolution or to conduct a hearing where witnesses may be required to appear, and documents may be required to be produced.
Unfair dismissal and the private sector
If a person is employed in the private sector in Tasmania, the provision that governs unfair dismissal is section 385 of the Fair Work Act 2009. Under that section, a person has been unfairly dismissed if Fair Work Australia (FWA) finds that:
- the person has been dismissed;
- the dismissal was harsh, unjust or unreasonable;
- the dismissal was not consistent with the Small Business Fair Dismissal Code (if the business had fewer than 15 employees);
- the dismissal was not a genuine redundancy.
Small Business Fair Dismissal Code
The Small Business Fair Dismissal Code applies to small businesses with 15 employees or fewer. People employed at the businesses cannot make an unfair dismissal claim within the first 12 months of their employment.
Employees of small businesses also cannot bring an unfair dismissal claim if:
- their dismissal occurred because of a downturn; or
- their position is no longer needed.
An employee can be summarily dismissed from a small business for serious misconduct – for example, if they steal from the employee, commit an act of violence at work or are guilty of serious breaches of occupational health and safety procedures. When this occurs, the employee need not be given notice or a warning.
In other cases, an employee must be given a valid reason based on their conduct and capacity to do the work.
Fair Work Australia
An employee who is covered by the federal system may make an application for unfair dismissal to Fair Work Australia. This application must be made within 21 days unless the FWC allows a further period taking into account the reason for the delay and other factors.
To be eligible to apply to FWA for unfair dismissal, an employee must have been in employment for more than the minimum period. This is one year for a small business or six months for any other type of employer.
FWA will try to resolve the situation through conciliation. Conciliation is a form of alternative dispute resolution where a conciliator speaks with each party and tries to help the parties to arrive at an acceptable resolution.
If the matter cannot be resolved through conciliation, the Commission will conduct a hearing. This will result in a decision and final orders. If the Commission finds that the employee was unfairly dismissed, it may make an order that they be reinstated to their employment and/or that they be paid compensation.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
