Unfair dismissal occurs when a national system employer dismisses an employee and the dismissal was ‘harsh, unjust or unreasonable’. “Dismissal” can mean termination, forced resignation, or voluntary resignation where the employee felt they had little choice. Unfair dismissal is a breach of the Fair Work Act 2009 (Cth). Our Sydney based unfair dismissal laywers regularly act for employers and employees in unfair dismissal disputes.
Criteria to make application for unfair dismissal
An employee who meets certain criteria and who believes they have been unfairly dismissed may make an application to the Fair Work Commission for an unfair dismissal remedy. In order to qualify to make an application for unfair dismissal, the employee:
- must have been employed for more than 12 months (if the employer is a Small Business Employer);
- otherwise, must have been employed for more than 6 months;
- must have earned less than the ‘high-income threshold’ as set from time to time (currently $142,000 p.a.); and
- must lodge the application for unfair dismissal remedy within 21 days of the dismissal taking effect.
Once the application is lodged in the Fair Work Commission, the matter will be set down for conciliation by telephone. If the matter cannot be resolved, the matter usually proceedings to a hearing.
Criteria for determining unfair dismissal
In order to avoid unfair dismissal, it must be shown that there was a valid reason for the dismissal.
The employer should always properly investigate and give the employee an opportunity to respond to any allegations of misconduct.
When meeting with an employee, the employer should allow a support person to be present.
If the allegations relate to poor performance, the employee should be given an opportunity to improve.
A warning letter is always a good idea. Employees should generally be given opportunity to respond. The absence of warning letters etc. can count towards unfair dismissal.
There are other factors which may be relevant when determining if there was an unfair dismissal.
Remedies for unfair dismissal
If the Fair Work Commission decides that there was an unfair dismissal, it can order:
- reinstatement; or
Usually, compensation for unfair dismissal is capped at 6 months ordinary pay.
Examples of unfair dismissal
Examples, where termination was found to be unfair dismissal, include termination due to:
- Being absent from work due to illness (including psychological illness)
- Worker being on restricted duties
- Swearing at a manager and punching a notice board
- Failing to report another employee’s dishonesty
- Fighting at work (where conduct not proven)
- Paying money to the wrong place, error of judgment
- Employee refusing to participate in training outside of working hours
Looking at the above examples, it is important to note that sometimes the termination was found to be unfair dismissal because the employer did not have sufficient proof or did not investigate allegations thoroughly. It might have been a different question if the conduct was proven.
Examples of fair dismissal
Examples, where termination was found NOT to be unfair dismissal, include termination due to:
- Poor attitude and conduct
- lateness/not wearing protective equipment
- Carelessness where safety an issue
- Conduct on social media
- Drinking alcohol during lunch break
- Transmission of pornography on work email
Our unfair dismissal lawyers would be happy to discuss your matter. Call us for a no-obligation phone call and free quote. 02 9232 8033.
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