Fair work laws; what is a dismissal?

The Fair Work Act provides (sec 386) that a person has been dismissed if the person’s employment with his or her employer has been terminateed on the employer’s initiative or the person has resigned from his or her employment but was forced to do so because of conduct or a course of conduct engaged in by his or her employer.

 

What follows is an extract from the Fair Work Commission’s unfair dismissal benchbook about what is meant by “on the employer’s initiative”.

 

“The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.149

The analysis of whether there has been a termination at the initiative of the employer for the purpose of s.386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.150

The termination of a contract of employment does not necessarily result in the termination of the employment relationship between the parties to that contract of employment: if the parties enter, or are taken to have entered, a new contract of employment, the employment relationship continues notwithstanding the termination of a prior contract of employment.151

Termination of employment may be ‘at the initiative of’ the employer even though it occurs in circumstances where the parties have agreed to a time-limited contract expiring on a specified date. The facts of a particular case may establish some decision or act on the part of the employer that brought about the end of the employment relationship (as distinct from the employment ending by effluxion of time).152