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Have You Been Unfairly Dismissed? (2021 Update)

Have You Been Unfairly Dismissed? (2021 Update)

An employee has been unfairly dismissed if they were terminated in a harsh, unjust or unreasonable way. Find out the requirements here.

12th February 2021
Reading Time: 3 minutes

If you were dismissed from your job in a harsh, unjust or unreasonable way, you might have been unfairly dismissed. If this is the case, your employer might be required to reinstate or compensate you. The Fair Work Commission is Australia’s national workplace relations tribunal and deals with cases relating to unfair dismissal. Here, we’ll discuss what unfair dismissal is and how to know when you can make a claim.

Termination of employment

Employment can end at the direction of an employer or employee. When an employee is terminated this is usually due to one of the following factors:

  • Redundancy
  • Poor performance
  • Misconduct

If you have been made redundant, it is possible that you will also be entitled to redundancy payments. By contrast, misconduct (which can include conduct such as theft, harassment or violence) allows your employer to terminate you immediately without notice.

Unfair dismissal

Unfair dismissal is when your employer terminates you in an:

  • Harsh;
  • Unjust; or
  • Unreasonable manner;

You can also be unfairly dismissed where an employee has been made redundant but the redundancy is not genuine.

Eligibility

To be eligible to make a claim, you must meet the following:

  • Your employment must come under national unfair dismissal laws
  • Term of employment was at least 6 months
  • Term of employment was at least 12 months if your employer is a small business
  • Must be earning less than $142,000 a year (not including super)
  • Lodge your claim within 21 days
  • You haven’t signed a Deed of Release

However, in addition to meeting criteria you also need to consider whether you have any grounds for success if you bring your case to the Fair Work Commission. An employment lawyer can advice of you of your eligibility to claim for unfair dismissal.

What Factors Does The Fair Work Commission Consider?

1. You need to have been dismissed

According to the Fair Work Act 2009 (Cth), a person is not considered to have been unfairly dismissed if they were:

  • Employed on a contractual basis and the contract expired
  • On a training arrangement and the employment ended at the end of the training arrangement

2. The dismissal has to be harsh, unjust or unreasonable

Once it has been proven that the person has been dismissed, the tribunal considers whether the dismissal was harsh, unjust or reasonable. A situation is deemed ‘harsh’ because of the consequences for the personal and economic situation of the employee. It can also be harsh if:

  • The dismissal was disproportionate to the gravity of the employee’s conduct.
  • The employee was not guilty of the alleged offence
  • Termination wasn’t based on sound evidence

The tribunal does this by examining the following factors:

  • Was there a valid reason for the dismissal related to the person’s capacity or conduct?
  • Was the person notified of that reason?
  • If the employee was able to respond
  • Was there any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal?
  • Was the dismissal related to unsatisfactory performance by the person?
  • To which degree was the size of the employer’s enterprise be likely to impact on the procedures followed in dismissing the employee?
  • To which degree was the absence of dedicated human resource management specialists likely to impact on dismissal procedures?
  • Any other matters that commission considers relevant.

3. The dismissal was not consistent with the Small Business Fair Business Code

Small businesses have different rules for dismissal. A small business is any business with less than 15 employees. Small businesses have some leniency due to their size and limited access to human resources. However, small businesses still need to comply with the Small Business Fair Dismissal Code. Failure to understand and/or comply with the Code can result in an unfair dismissal application which can be a costly and time consuming process.

4.The dismissal was not a case of genuine redundancy

When an employee’s dismissal is a genuine redundancy the employee isn’t able to make an unfair dismissal claim.

A genuine redundancy is when:

  • An employee’s job is no longer required
  • The employer followed any consultation requirements in the award, enterprise agreement or other registered agreement
  • The employee was given notice

However a dismissal is not a genuine redundancy if the employer still needs the employee’s job to be done. The most common example of this is where an employer hires someone else to do the job. Further, a redundancy is also not genuine if the employer could have given the employee another job within the employer’s business or an associated entity. If you have further questions about unfair dismissal, it may be worth getting in touch with an employment lawyer.

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Author
Dominic Woolrych

Dominic is the CEO of Lawpath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.