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Exclusions for Unfair Dismissals |
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The following persons are prevented from bringing a claim for unfair dismissal in the Commission:
Companies with less than 100 employees
The method to determine whether a company has less than 100 employees is by simple headcount of how many full-time, part-time and long-term regular casual employees (defined as those casual employees who have been "engaged on a regular and systematic basis for a period or sequence of periods of at least 12 months") are employed at the time the dismissal took place.
Volunteers are not included in the definition of an employee under the Act and therefore are not counted in the assessment (Laing vs Drug Arm Australia, PR973759, 23 August 2006).
Related body corporates are also included for the purposes of the headcount. It can be difficult to determine whether one company is a related body corporate of another. We recommend you contact our Employment and Industrial Team on (07) 3223 6400 for advice on this aspect if required.
A determination will be made by the Commission by simple review of papers provided by the employer as to the number of employees employed on the date in question. The information a company might produce in proving the number of employees could include:
Dismissal may still be valid for 'Genuine Operational Reasons' Employees of workplaces with more than 100 employees may still be validly dismissed for "genuine operational reasons". Where an employer establishes there was a genuine redundancy, the employee will be prevented from making an unfair dismissal claim even if there was some other reason for the termination (ie taking sick leave). However, if the second reason for the redundancy was unlawful (ie discrimination) remedies would still be available in relation to that unlawful termination. Click here to go to our Discrimination page.
The commission must conduct a hearing to determine whether the operational reasons relied on by the employer are genuine.
The recent case of Carter v Village Cinemas Australia Pty Ltd [2007] AIRCFB 35 held where it can be clearly established the termination of employment was for operational reasons it is not necessary to have regard to such other matters as to whether the employee could have transferred to any other position or whether the employer could have utilised other means to maintain the employment. The operational reasons need not be something that demands or brings about the obligation to terminate or even be an unavoidable consequence. Whether the employer could have done something other than terminate the employment will generally be irrelevant so long as the termination was for ‘a genuine operational reason, or reasons that included a general operational reason’.
Operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business, or to a part of the employer’s undertaking, establishment, service or business.
The employer is still obliged to provide the Commission with evidence of the genuine operational reasons and a mere statement asserting the reasons will not suffice.
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