Other reasons for dismissal
Constructive dismissal
Summary dismissal
Misconduct
Fixed term contract
Frustration of contract
Absenteeism
About unfair dismissal
Constructive dismissal occurs when an employee resigns because the employer’s words or actions lead the employee to believe there is no other choice.
It’s also called a ‘forced’ dismissal.
Examples include:
- an employer fails to provide safe working conditions or
- the employer makes substantial changes to an employment contract without the employee’s agreement.
The Queensland Industrial Relations Commission may look on the resignation as a dismissal, given the circumstances. It may be unfair.
Summary dismissal also called ‘instant dismissal’ is when an employer decides to dismiss the employee ‘on the spot’. It may be unfair.
Misconduct is defined in the Industrial Relations Act 1999 (PDF, 1.9 MB) as theft, assault or fraud. In such serious instances, an employer may dismiss an employee instantly, without compensation in lieu of notice of termination of employment
If the conduct is less serious, there may still be justification for termination of employment but with notice or compensation in lieu of notice.
Many awards and agreements include their own definitions of misconduct. These may include:
- intoxication at work
- conduct causing serious risk to
- a person’s health and safety or
- the reputation, viability or profitability of the business
- wilful or deliberate behaviour inconsistent with the employment contract
- refusal to carry out lawful and reasonable instruction.
A case of alleged misconduct would need to be investigated and considered on its merit as warranting instant dismissal.
Fixed term contracts have a set beginning and end. They are often used for project work or to relieve an employee absent for an extended time (e.g. maternity leave or long service leave).
It is recommended that an employer advise an employee that the contract’s expiry date is looming. A new contract may be arranged if both parties agree.
Apprentices and trainees also enter into fixed contracts while they learn their trade, art or business.
A training contract after completion of the probationary period, does not end unless:
- all parties agree in writing to cancel, or
- prior approval is received from the Queensland Department of Employment and Training.
Frustration of contract is where the employment contract comes to an end other than by resignation, unfair dismissal or the giving of notice. Examples include where the business is destroyed by flood, an employee or employer dies, or an employee’s injury or illness ends the working relationship.
Absenteeism in itself is not grounds for dismissal. An employer cannot lawfully dismiss an employee because of a temporary absence from work due to illness or injury or parental leave.
It may be seen as an unfair dismissal if an employee with an otherwise good record of work attendance is dismissed for a single unauthorised absence.
However the employer may have grounds for dismissal if an employee has a history of persistent unexplained absences.
An employer cannot assume an employee has resigned if there’s an absence from work for several days and no contact from the employee. The employer needs to try and contact the employee to ask about their non-attendance and provide a warning about non-compliance with business leave procedures.
About unfair dismissal
Please note: The following information applies to employees and employers covered by the State industrial relations jurisdiction.
If your employer is a constitutional corporation (including a financial or trading corporation – generally Pty Ltds or Limiteds) you are now covered by Federal jurisdiction under the Federal Government’s Workplace Relations legislation which commenced 27 March 2006. In this case you should contact the Queensland Government’s Workplace Rights Hotline on 1300 737 841 (formerly the Fair Go Queensland Advisory Service Hotline) for further information and assistance on the new laws.
Special dismissal protections apply for young workers employed by corporations
A dismissal is unfair if it is:
- for an invalid reason (for example discriminatory) or
- harsh, unjust or unreasonable.
Invalid reasons are listed in the Industrial Relations Act 1999 (PDF, 1.9 MB). They include:
- temporary absence due to illness or injury
- membership or non-membership of a trade union
- involvement in union activities
- filing a complaint or being involved in legal proceedings against the employer
- being pregnant or adopting a child
- applying for or being on parental leave.
The Queensland Industrial Relations Commission determines whether a dismissal is harsh, unjust or unreasonable.
Some employees are excluded from unfair dismissal provisions. They include probationary employees, short-term casuals, apprentices or trainees, contract employees and those earning more than $106,400 who are not employed under an award or an agreement and are not public service officers employed on tenure under the Public Service Act 1996 (PDF, 572 KB).
If you believe you have been unfairly dismissed, you can lodge an application for reinstatement with the Queensland Industrial Relations Commission.
Further information is available on unfair dismissal.
Last updated 22 July 2009
Other languages