Unfair Dismissal

Under the Fair Work Act 2009 there are factors to consider in relation to unfair dismissal at work. Each of these will be explored further below, but essentially if a person wants to have a successful unfair dismissal claim, the Fair Work Commission must be satisfied:

• The application needs to be made within 21 days of the dismissal or demonstrate exceptional circumstances;
• The person was dismissed;
• The dismissal needs to be unfair, harsh, unjust or unreasonable;
• The dismissal did not comply with the Small Business Fair Dismissal Code  (this only applies to small businesses); and
• The dismissal was not a case of genuine redundancy.

Dismissal

Under the Fair Work Act 2009 a person is deemed to have been dismissed if:

• the person’s employment was terminated on the employer’s initiative (this could be done by an employer telling an employee that they no longer have a job), or
• the person was forced to resign from their work because of their employer’s conduct.

Unfair dismissal

A dismissal may be unfair if it was ‘harsh’, ‘unjust’ or ‘unreasonable’. Under the Fair Work Act 2009 there is a list of criteria which are taken into consideration to work out if a dismissal was unfair. These include (but not limited to):

• if there was a valid reason for the person’s dismissal which related to their capacity or conduct at work;
• if the person was notified of that reason and whether they were given an opportunity to respond;
• whether the employer had been unreasonable and denied the employee a support person during discussions in relation to the dismissal; and
• if the dismissal was related to the person’s unsatisfactory performance, whether the person was warned about their unsatisfactory performance.

There are also other considerations such as whether or not:

• the dismissal was an extreme response to the situation;
• the employee is guilty of the action or behaviour the employer used as the reason to dismiss them;
• there is evidence support the employer’s decision to dismiss the employee; and if
• the dismissal will have harsh consequences on the employee’s economic or personal situation.

Fair Termination via incapacity, poor conduct or genuine redundancy

If you are an employee and thinks you have been unfairly dismissed from work, please get in touch with us as soon as possible. A strict time limit of 21 days apply (from the day you were dismissed) if you want to bring an action against your employer. There are also various requirements such as a minimum employment period (6 months), a cap on your annual income ($167,500) and whether or not you were covered by a modern award or an enterprise agreement. Reach out to us and we can explore your situation with you.

If you are a small business owner (who has less than 15 employees) who is involved with an unfair dismissal claim we can also provide you with legal assistance. The minimum employment period for an employee will be slightly different for your business (12 months) and you may qualify for an exception under the Small Business Fair Dismissal Code.

If you think you have been subject to unfair dismissal please get in touch with us – your first phone call will always be free.