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HG Paper: Unfair Dismissal Claims under the Fair Work Act: Guiding Principles from Recent Decisions - 23 Mar 2010

Some of Fair Work Australia’s recent decisions provide useful signposts as to how unfair dismissal claims will be handled where the claim is made:

by a casual employee;

  • outside the 14 day time period for those unaware of the law;
  • where there are no reasonable prospects of success; and
  • by an employee of a foreign company working in Australia.

In summary

  • The Fair Work Act provides casual employees with the same ability to make an unfair dismissal claim as full-time or part-time employees, as long as they are engaged on a regular and systematic basis and have a reasonable expectation of ongoing employment on that basis. If a casual employee does not work a pattern or roster of hours and days, or have a clearly agreed arrangement, they may be able to establish evidence of regular and systematic employment in various ways, depending on the circumstances of their employment.
  • Ignorance of the Fair Work Act and its time limits can be considered by Fair Work Australia in deciding whether to accept a claim out of time. However, claimants will need to prove that they were genuinely unaware of unfair dismissal laws and time limits.
  • Fair Work Australia has the power to dismiss claims in various circumstances, including where the claim has no reasonable prospects of success. There are a number of principles that Fair Work Australia will follow in dismissing a claim for this reason.
  • Employees of foreign companies can make unfair dismissal claims in Australia. Fair Work Australia recently allowed a former employee of a New Zealand-based company to proceed with an unfair dismissal claim.

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