What is an Unfair Dismissal?
An unfair dismissal is a dismissal or termination of a person’s employment in circumstances that are harsh, unjust or unreasonable.
There are many factors the Fair Work Commission will have regard to in considering whether a termination was harsh, unjust or unreasonable. These include:
- Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees);
- Whether the employee was notified of the reason and given an opportunity to respond to any reason related to the employee’s capacity or conduct;
- Whether the employee had received prior warnings as to their unsatisfactory performance prior to the dismissal;
- Whether the employee was permitted by the employer to have a support person present at an ‘misconduct’ meeting or at any discussions relating to the termination;
- The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. This includes whether the presence or absence of a dedicated human resource management specialist or expertise would have impacted upon the procedures effecting the dismissal; and
- Whether the compensation or notice provided to the employee was sufficient; and
- If the Employer is a small business, whether they followed the Small Business Dismissal Code
Generally, a harsh dismissal is one in which the punishment does not fit the crime. However, no two dismissals are the same and the application of these factors depends upon the individual circumstances surrounding the termination.
Who can bring an Unfair Dismissal Claim?
Not all employees are eligible to bring an unfair dismissal claim. Employees will only be eligible if they meet the requirements set out in the Fair Work Act 2009 (Cth) including having completed the minimum employment period and can demonstrate they earn less than the maximum high-income threshold.
How long do I have to file an Unfair Dismissal Claim?
An employee has 21 days, from the date of their dismissal to file an unfair dismissal application with the Fair Work Commission.
If you require assistance in assessing whether you have an unfair dismissal case and preparing and application. Or, if you are an employer needing assistance fairly dismissing and employee or defending an unfair dismissal application, Adams & Partners Employment Law Team can help you. Contact us on (02) 4721 6200.
Written By Amelia Hatton.