Tasmanian Consolidated Acts Tasmanian Consolidated Acts
(1) In this section –
"continuing employment" means employment that is of a continuing or indefinite nature or for which there is no expressed or implied end date to the contract of employment;
"employee" means a person who is or was engaged to work casual employment, part-time employment, full-time employment or probationary employment and includes a former employee;
"relationship status" means the status of being, or having been, in a personal relationship, within the meaning of the Relationships Act 2003.
(2) In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account.
(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with –
(a) the capacity, performance or conduct of the employee; or
(b) the operational requirements of the employer's business.
(4) Without limitation, the following are not valid reasons for termination of employment:
(a) membership of a trade union or participation, or involvement, in trade union activities;
(b) seeking office as, acting as, or having acted as, a representative of employees;
(c) non-membership of a trade union;
(d) race, colour, gender, sexual preference, age, physical or intellectual disability, marital status, relationship status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, except where the inherent nature of the work precludes employment for any of those reasons;
(e) absence from work during maternity or parental leave;
(f) temporary absence from work because of illness or injury, provided that nothing in this paragraph is to be construed as removing an employer's right to terminate an employee's employment on account of persistent or unjustified absenteeism;
(g) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.
(5) Where an employer terminates an employee’s employment, the onus of proving the existence of a valid reason for the termination rests with the employer.
(6) Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant.
(7) The employment of an employee must not be terminated for reasons related to the employee’s conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot reasonably be expected to provide such an opportunity.
(8) An employee responding to an employer under subsection (7) is to be offered the opportunity to be assisted by another person of the employee’s choice.
(9) The principal remedy in a dispute in which the Commission finds that an employee's employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job.
(10) The Commission may order compensation, instead of reinstatement or re-employment, to be paid to an employee who the Commission finds to have been unfairly dismissed only if, in the Commission's opinion, reinstatement or re-employment is impracticable.
(11) In determining the amount of compensation under subsection (10), the Commission must have regard to all the circumstances of the case, including the following:
(a) the length of the employee’s service with the employer;
(b) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated;
(c) any other matter the Commission considers relevant.
(12) Where the Commission finds that an employee's employment has been unfairly terminated and has determined that reinstatement or re-employment is impracticable, any amount of compensation must not exceed an amount equivalent to 6 months' ordinary pay for that employee.
(13) The Commission is to take into account any efforts of the employee to mitigate the loss suffered as a result of the termination of his or her employment.