Unfair Dismissal

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

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 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

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.

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.

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.