Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Termination of Employment Convention, 1982 (No. 158) - Australia (Ratification: 1993)

Article 4 of the Convention. Valid reasons for dismissal. In its observations, the Australian Confederation of Trade Unions (ACTU) once again expresses its concern that the Fair Work Act (FWA) does not require the Fair Work Commission (FWC) to be satisfied that individuals selected for redundancy were fairly chosen. The Government indicates in its report that the requirements for determining whether a redundancy is genuine remain unchanged. The Committee notes the information provided by the Government concerning judicial decisions that illustrate the manner in which the FWC takes into account the requirements for genuine redundancy in the Commonwealth. The Committee requests the Government to continue providing information concerning application of this Article of the Convention in all states and territories and for all categories of workers, including examples of court rulings taking into account the requirements for genuine redundancy.

Article 7. Procedure prior to or at the time of termination. The Government indicates that in the case of dismissals, other than cases of summary dismissal, the Small Business Fair Dismissal Code requires an employer to provide the employee with a warning that his or her conduct or capacity to perform the job is such that the employee risks being dismissed. Furthermore, an employee must be provided with the opportunity to respond to the warning and rectify the problem. The Government indicates that there has been no change to the Code or its application, noting that, in the Commonwealth, the FWC customarily finds that the failure to provide an employee with sufficient warning of dismissal constitutes a failure to comply with the Code on the part of the employer. The Committee notes the judicial decisions referenced by the Government exemplifying this rule. The Committee requests the Government to continue providing information on the application of the Small Business Fair Dismissal Code and other legislation applicable in all states and territories and to all categories of workers, concerning workers’ opportunity to defend themselves against the allegations made prior to termination.

Articles 8 and 9. Appeals procedure. In its observations, the ACTU notes the amendments to the FWA, which align the time limits for lodging unfair dismissal and unlawful termination claims at 21 days. The ACTU welcomes the increase in the time limits for lodging unfair dismissal applications from 14 to 21 days; however, it still considers that 21 days is too short. While the ACTU acknowledges that the FWC may grant employees an extension of the time limit, it considers that such extensions are available only for exceptional circumstances and are often denied. The Government indicates that extensions are available in extenuating circumstances, such as where an employee has experienced serious health problems, or where the employee only became aware of the dismissal after the termination had taken place. The ACTU once again expresses its concern that there are different rules applicable to small business employees. In addition, the ACTU considers that workers do not enjoy adequate protection in case of genuine redundancy and once again expresses its view that the FWA contains insufficient redundancy safeguards against precarious forms of employment aimed at avoiding the protection resulting from the Convention. The Committee notes the Government’s reference to the jurisprudence of the FWC in reply to the ACTU’s previous and current observations. The Government provides examples of decisions in which the FWC found that there were extenuating circumstances justifying extensions of time, such as where the employee had experienced significant health problems, as well as situations where the employee became aware of the dismissal only after the termination had taken place. The Committee requests the Government to continue to provide examples of FWC decisions involving requests for extensions of time in the context of unfair dismissal and unlawful termination claims.

Article 11. Serious misconduct. The Committee notes the ACTU’s continued concern that the Small Business Fair Dismissal Code does not guarantee fair treatment for employees of small businesses, making it possible to dismiss such employees without notice or warning if the employer holds a reasonable belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. The Government refers to several FWC decisions clarifying what may constitute reasonable grounds for summary dismissal and expresses the view that summary dismissal will generally be deemed to be in accordance with the Small Business Fair Dismissal Code where the employer had a reasonable belief that there were appropriate grounds for dismissing the employee. The ACTU considers that the standard of proof to be exercised by the FWC under the Small Business Fair Dismissal Code is too broad, as the FWC is not required to base its decision on evidence showing that the employee’s misconduct occurred, nor is it required to satisfy itself that the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. Employees of small business are thus deprived of an effective remedy as evidenced in Harley v. Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWC 3922, where an employer had erroneously accused the employee of theft. However, as the employee did not dispute the employer’s belief when confronted, the FWC held that the employer had reasonable grounds for holding that belief and found the employee’s dismissal to be consistent with the Small Business Fair Dismissal Code. The appellate court reached similar conclusions in Pinawin v. Domingo [2012] 219 IR 128 and Steri-Flow Filtration (Aust) Pty Ltd v. Erskine [2013] FWCFB 1943. The ACTU is of the view that the Small Business Fair Dismissal Code should be abolished and that all employees, regardless of the size of business in which they work, should be entitled to protection against unfair dismissal. The Committee requests the Government to continue providing information, including examples of FWC decisions, on the manner in which the Small Business Fair Dismissal Code ensures fair treatment of employees in the event of dismissals based on alleged misconduct.

Application of the Convention in practice. The Committee notes with interest the detailed information provided, including statistics and examples of decisions issued by courts and tribunals in all parts of the country concerning questions of principle relating to the application of the Convention. The Committee requests the Government to continue providing updated information on the application of the Convention in practice, including examples of court rulings concerning questions of principle relating to the application of the Convention and available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons.