What is unfair dismissal?

By Jacob Carswell-Doherty

An employee may be eligible to lodge an application for unfair dismissal with Fair Work Australia if they have completed the minimum employment period of:
– 12 months – where the employer is a small business employer; or
– 6 months – where the employer is not a small business employer.

The Fair Work Act defines a ‘small business employer’ for unfair dismissal purposes as being one who employs less than 15 employees by individual head count.

For a small business employer to dismiss someone fairly (i.e. after 12 months) the employer will have to comply with the Fair Dismissal Code for Small Business.

An employee has been unfairly dismissed if it can be established that the:
– employee was dismissed summarily and without pay in lieu of notice;
– dismissal was harsh, unjust or unreasonable; and/or
– dismissal was not a case of genuine redundancy.

Employees who earn more than the high income threshold of $123,300.00 (as at 1 July 2012 and subject to periodic change), and who are not covered by a modern award or enterprise agreement, cannot make an unfair dismissal claim. In this case, an employee will have to seek a remedy via the courts.

Employees should always be given reasons for their dismissal. If the reason was related to performance, the employee should usually be given warnings about any allegation of unsatisfactory aspect of their performance, prior to dismissal.

When determining whether or not there has in fact been an unfair dismissal, Fair Work Australia will consider whether there was a valid reason for the dismissal that is related to the employee’s capacity or conduct (including its effect on the safely and welfare of other employees). A valid reason is one that it “sound, defensible or well founded.” If this cannot be established then in all likelihood the dismissal will be deemed to be harsh, unjust or unreasonable.

The employer may be ordered to pay any outstanding entitlements (subject to a cap) that have not already paid and, in some rare cases, may even be ordered to reinstate the employee.

While there is virtually no limit as to what may constitute conduct capable of forming a valid basis for a dismissal, some instances where an employee’s capacity or conduct has formed the basis for a valid dismissal may include:
1. Unsatisfactory performance provided there has been appropriate performance management;
2. Conduct at work which may be considered inappropriate, dangerous or hazardous;
3. Conduct which negatively affects an employer’s image or reputation;
4. dishonesty; and/or
5. Breaches of an employer’s code of conduct;

Note – as long as there is some connection with the individual’s employment, each of the above examples may include conduct outside of work hours.

If you are an employer who is considering dismissing an employee, or are an employee who has been dismissed, then you should contact our office for more specific advice on the specific factual situation.

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