Employment Law · Additional Resources

This publication contains a summary of Chapter 3 of the Queensland "Industrial Relations Act, 1999" which is the chapter relevant to employee dismissal.

The Queensland Industrial Relations Commission has shown in matters which have been decided, that it is very lenient towards employees. It is recommended that you seek this firm's advice if you are an employer considering dismissing an employee to ensure that you follow the correct procedure to avoid an action for wrongful dismissal. Alternatively if you are an employee we can advise you in respect of your rights to avoid dismissal or to enable an action for re-employment or compensation.

Exempted Employees

Section 72 of the Act provides that unlawful dismissal, does not apply to short term casual employees or employees engaged for a specific task or employees serving a probationary period, or trainees or employees who earn over the statutory limit - recently set at $75,200.00,

Types Of Order

If the Industrial Relations Commission on a complaint by an employee is satisfied that an employee has been unlawfully dismissed then the Commission may make such orders, as it considers appropriate. This may include an order for reinstatement on conditions no less favourable than those under which the employee was employed immediately before the dismissal. In addition, the Commission may order that the employer pay the employee any remuneration lost by the employee because of the dismissal.

If the Commission considers reinstatement impractical, the employer may be required to pay the employee compensation in an amount determined by the Commission. The Court's only limit to the amount of compensation is the equivalent remuneration the employee would have received for six months employment.

Unlawful Dismissal

Section 73 provides that a dismissal is unlawful if:-

Section 77 says the Commission in deciding what is harsh, unjust or unreasonable must consider:-

Further if (b)(ii) applies:-

Notice

Further, an employer may only dismiss an employee if a minimum period of notice is given or the employee engages in misconduct of the type that would make it unreasonable to require the employer to continue the employment during the notice period, for instance in cases of theft, assault, fraud or other serious misconduct. That notice period is as follows - if the employee's continued service is not more than 1 year - one week's notice; not less than 1 year but not more than 3 years - two weeks notice; more than 3 but not more than 5 years notice - three weeks notice and more than 5 years - four weeks notice. If the employee is over 45 years of age and has continuous service of over 2 years a further one week's notice is required.

There are variations to the basic law in circumstances where an employer decides to dismiss fifteen or more employees.

Injured Employee

An employer must not dismiss an employee solely or mainly because the employee is not fit for employment because of an injury as defined under the Queensland WorkCover Act. This is also an offence and an employer is liable to fines. The relevant period is six (6) months of protection to the employee.

Time Limit

Importantly, an application must be made within 21 days after the dismissal takes effect. Given that this is a very short period even if a dismissed worker is complaining of discrimination (where there is a one (1) year time limit) an application should be lodged with the Industrial Relations Commission before pursuing an application with the Anti-Discrimination Commission.



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