Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission is Australia’s national workplace relations tribunal. It is important to understand that only a Member of the Fair Work Commission can decide whether your dismissal was unfair.

Are You Eligible To Make An Application For Unfair Dismissal?

To apply for unfair dismissal you must meet the following criteria:

  • Must be covered by national unfair dismissal laws. In NSW all employees except state public sector and local government employees are covered by national unfair dismissal laws.
  • Must be employed for at least 6 months with the employer
  • Must be earning less than 133,000 a year or earning more than $133,000 a year but covered by an award or an enterprise agreement

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.

What Factors Does The Fair Work Commission Consider?

1.The person has to be dismissed

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

  • employed under a contract for a specified period of time, specified task or for the duration of a specified season, and the employment was terminated at the end of the period, task or season.
  • on a training arrangement and the employment terminated 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 or it is disproportionate to the gravity of the alleged offence; ‘unjust’, because the employee was not guilty of the alleged offence on which the employer acted; or ‘unreasonable’, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

The tribunal does that 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?
  • was the person given an opportunity to respond to any reason related to the capacity or conduct of the person?
  • 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 the size of the employer’s enterprise be likely to impact on the procedures followed in dismissing the employee?
  • To which degree the absence of dedicated human resource management specialists or expertise in the enterprise be likely to impact on the procedures followed in effecting the dismissal?
  • and 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 defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis.

Small business employers are afforded some leniency due to their size and limited access to human resources,  however they are still subject to the unfair dismissal jurisdiction and are required to comply with the fair termination practices as set out in 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:

  • the person’s job doesn’t need to be done by anyone
  • the employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.

However a dismissal is not a genuine redundancy if the employer still needs the employee’s job to be done by someone (eg. hires someone else to do the job) or could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

How Can LawPath Help?

After reading the above criterias if you think you meet the requirements for unfair dismissal then use our ‘Ask a Lawyer’ function to get advice from an experienced Employment Lawyer specific to your case. LawPath offers a free 30-minute legal consultation with one of its 570 specialist lawyers across Australia. A lawyer can advise you on your legal position and advise you on your unfair dismissal chances.

Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or to get answers to your legal questions.”

 

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.