Definition of Unfair Dismissal
The FairWork Ombudsman defines unfair dismissal as ‘when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.’ Should this occur it can be an extremely stressful time for an individual which in turn the ramifications both financially and psychologically could be irreversible.
What is considered harsh and unreasonable?
Understanding what is justified to be harsh or unreasonable, the FairWork Commission can take numerous factors into consideration for example:
- ‘ whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees), and
- whether the person was notified of that reason, and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal, and
- if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal, and
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal,
- and any other matters that the Commission considers relevant’
(FAIR WORK ACT 2009 – SECT 387)
Being unfairly dismissed does not mean you are alone. Further to this if you have had no choice but to resign from your employment this can constitute as a constructive dismissal enabling yourself to seek remedy. Such circumstances can both be challenged and with the aid of one our expert lawyers here at Turner Freeman, success can be achieved. As set out in the citation above, the FairWork Commission has numerous avenues of investigation in order to fully determine your claim.
Commencing proceedings within the relevant jurisdiction or within FairWork Australia to challenge the decision can be progressed by Turner Freeman whom can assist. Furthermore if you have been unfairly dismissed, it is paramount you contact your nearest Turner Freeman office due time limitations (21 days from the date of dismissals) and certain requirements which need to be prior to a conciliation conference. A minimum six months employment with the organisation and earnings less than $138,900 per annum are key thresholds needed to be met to file a claim.
In the event you have been unfairly dismissed please do not hesitate to give Turner Freeman a call in order to assess your situation and determine appropriate cause of action for you.