Termination of employment Vs unfair dismissal

Termination of employment can happen due to redundancy, resignation by the employee or dismissal by the employer.

What is considered an unfair dismissal?

The Fair Work Commission has to consider in all cases of unfair dismissal whether:

  • The employee has been dismissed by the employer’s actions
  • The dismissal was not for a valid reason
  • The dismissal was otherwise harsh, unjust or unreasonable
  • If the employer was a small business – the dismissal was not compliant with the Small Business Fair Dismissal Code
  •  The dismissal was not a case of genuine redundancy.

What is considered harsh, unjust and unreasonable?

The Fair Work Commission considers a dismissal to be harsh, unjust and unreasonable if:

  • There was not a valid reason for the dismissal such as the employees capacity or conduct
  • The employee was not given any or any a reasonable time to respond to allegations of misconduct or poor performance
  • The dismissal was performance related, the employee was not warned about the performance issues and given a chance to improve prior to dismissal
  • The penalty of dismissal outweighs the conduct of the employee in the circumstances.
  • Whether the employer has been consistent in its application of penalties in other similar circumstances.
  • Whether the employer’s policies or procedures where relevant have been adequately published and the subject of training was easily accessible to employees.

Who can make an unfair dismissal application?

To be eligible to make an unfair dismissal application an employee must have completed a minimum period of employment of:

  • One year – where it is a small business with less than 15 full-time employees
  • Six months – where the employer is not a small business.

If you believe you have been unfairly dismissed from your employment, you might have a claim. Please contact us for an obligation free assessment of your situation.