Fair Work Commission

What does dismissed mean?

See Fair Work Act 2009 s.386

The term dismissed is defined in the Fair Work Act as a situation where:

• a person’s employment has been terminated at the employer’s initiative, or
• a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

A dismissal does NOT include where:

• a person is demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer,
• a person was employed under a contract for a specified period of time, specified task or for the duration of a specified season and the employment comes to an end at the end of that period, or
• a person had a training arrangement with their employer which:
  • specified that the employment was limited to the duration of the training arrangement, and
  • whose employment ends at the end of that training arrangement.

Exception

A person employed under a contract for a specified period of time, specified task or for the duration of a specified season and the employment comes to an end at the end of that period, could be considered to have been dismissed if a substantial purpose of the employment of the person under a contract of that kind was so that the employer could avoid their obligations under the unfair dismissal provisions of the Fair Work Act.^[1]

Notification of dismissal

Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous.

Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.^[2]

References