It is common knowledge that in accordance the Fair Work Act 2009 (Cth) an employee terminated before completing 6 months employment (or 12 months when the employer is a small business employer) is not eligible to make an unfair dismissal application to the Fair Work Commission (FWC).
However, this does not mean that terminating the employment of an employee “for no reason” within the first 6 months of employment is risk-free.
Employees terminated within the first 6 months of employment will often consider what other options are available to them to fight the termination. Defending those claims can be more complicated and costly than an unfair dismissal claim.
Some options the employee may consider pursuing include the following.
- Breach of contract claims – these claims rely upon the terms of the employment contract (whether written or verbal) and may include a claim for a specific notice period, a claim related to a fixed term or seasonal contract, and/or a claim for loss arising from (among other things) the employee giving up other employment to take up the position.
- General protections or adverse action claim – made to the FWC, these claims may allege that the dismissal was because of discrimination, sexual harassment, Award breaches, complaints or enquiries made about the employment or the exercise of workplace rights (amongst others). If the claims are not resolved, the employee can apply to the Federal Court of Australia or the Federal Circuit Court of Australia.
- Discrimination claims – discrimination complaints can be made to a State based anti-discrimination agency (such as the Victorian Equal Opportunity and Human Rights Commission) or a Federal agency (such as the Australian Human Rights Commission). If the matter is not resolved it may be escalated to an appropriate Court or tribunal.
If you are contemplating terminating an employee’s employment within the 6 month-period, call us on (03) 5722 4681 to check what other risks you may be facing and how you can manage all of the risks appropriately.
MORGAN COUZENS LEGAL