Unfair Dismissal as an Employee

Unfair dismissal occurs where an employment relationship ends and the dismissal is harsh and/or unjust and/or unreasonable.  At times if can be difficult to determine whether a termination constitutes unfair dismissal because of the surrounding circumstances and the claims made by the parties.  Both employers and employees should take an objective approach when looking at whether a termination is unfair.  This page provides some basic information that can be looked at when considering whether a dismissal is unfair or not.

An employment relationship may end in an unfair dismissal claim in the following circumstances:

  1. An employer dismisses an employee
  2. An employee resigns from their employment because of something the employer did
  3. An employee believed they were forced to resign because they would have been dismissed anyway

A dismissal may be an unfair dismissal where:

  • An employee has not been provided with a valid reason for termination
  • The reason for dismissal given by the employer is not a valid reason
  • An employee was not given notice of the reason for dismissal before they were dismissed
  • An employee was not given an opportunity to respond to the reason for dismissal before they were dismissed
  • There have been no previous warnings given about unsatisfactory performance
  • Where the circumstances are considered, that in all the circumstances the dismissal was harsh, unjust or unreasonable

Harsh, Unjust or Unreasonable Dismissal

A dismissal may amount to unfair dismissal because it was harsh and/or unjust and/or unreasonable.  It is enough for an employee to prove that a dismissal was only harsh or only unjust or only unreasonable for the dismissal to be unfair.

​Whether a dismissal is unfair is based upon the facts and evidence of each individual case.  It’s important to have an employment lawyer provide you with qualified legal advice to help guide you based on the specific circumstances of your case.

Unfair Dismissal – Harsh

Fair Work Act 2009 (Cth) section 387 Criteria for considering harshness:

There is no limit to harsh factors that can be considered in an unfair dismissal matter provided the factor raised is reasonable. 

Matters that must be taken into account when considering the harshness of dismissal may include:

  • Whether the employer provided the employee with a valid reason for dismissal based upon the employee’s capacity or conduct including their effect on the safety and welfare of other employees
  • If the employer notified the employee of the reason for dismissal
  • If the employee was given a reasonable opportunity to respond to the reason related to the capacity or conduct of the person
  • Whether the employer unreasonably refused the employee a reasonable opportunity to have a support person to assist them in any discussion related to the dismissal
  • If the dismissal was related to unsatisfactory performance, whether there have been any previous warnings given to the employee about unsatisfactory performance
  • The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
  • 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
  • Any other factor the Fair Work Commission considers relevant

Valid Reason for Dismissal​

A valid reason for dismissing an employee should be justifiable.  The reason cannot be fanciful, spiteful or prejudiced. Whether a valid reason existed for terminating an employee is judged on an objective analysis of the facts of each case.  When approaching unfair dismissal it is important to recognise that there are two sides to the story and there may be other business factors that can be taken into account.

​Serious Misconduct

Serious misconduct is defined by the Fair Work Regulations 2009.

Serious misconduct can include the following types of employee conduct:

  • Theft, fraud or assault
  • An employee being intoxicated at work
  • Wilful or deliberate behaviour inconsistent with the continuation of the contract of employment
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person
    • The reputation of the employer’s business
    • The viability or profitability of the employer’s business
  • Where an employee refuses to carry out a lawful and reasonable instruction consistent with the employee’s contract of employment

When Unfair Dismissal Rights Begin

Unfair dismissal rights can vary based on the size and sophistication of the employer.  Before a National Employment Standards employee can lodge an unfair dismissal claim the following requirements may apply:

  1. The employee must have been employed for 6 months or more in a large business
  2. The employee must have been employed for 12 months or more in a small business
  3. The National System Employer rules must apply to the employer
  4. The dismissal was brought about because of the employer or the employer’s actions

​Sometimes unfair dismissal cases arise because an employer forces an employee to resign.  Often employers can be seen to have forced an employee to resign by using their influence and position of power to bring about a resignation.  This is commonly known as constructive dismissal.

Unfair Dismissal Time Limits

An employee has 21 days in which to bring about an unfair dismissal claim against an employer.  This time frame runs from the employee is notified of the dismissal.  If there is a valid reason, the 21-day time limit can be extended under some circumstances.

Unfair Dismissal Remedies

Where unfair dismissal has been found, the remedies available are:

1.    The employee is reinstated in the previously employed position with the employer; or

2.    The employee must be compensated by the employer.

The preferred option by the Fair Work Commission is to find a way to mediate the issues and reinstate the employee to their previous position.  This offers benefits to the employee and employer if the parties can reconcile their differences. In some circumstances, the parties may continue to hold grievances and it would be better that the employee does not return to work with the employer. In this case, the employee is entitled to compensation. 

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