Understanding Unfair Dismissals

Unfair dismissal is when an employee is dismissed from their job in way that is deemed to be harsh, unjust or unreasonable.

In order to be protected from unfair dismissal and eligible to make a claim to the Fair Work Commission, an employee must have completed the minimum period of employment (usually six months but 12 months if the employer is a small business) and earn less than the high income threshold (currently $148,700.00 per annum, excluding superannuation).

If an employee earns more than the high income threshold but is covered by a modern award or enterprise agreement, they can still make a claim for unfair dismissal.

The Fair Work Commission may find an employee was unfairly dismissed if:

  1. the employee was dismissed;
  2. there was no valid reason for the dismissal;
  3. the dismissal was harsh, unjust or unreasonable;
  4. the employee worked for a small business and the dismissal was not carried out according to the Small Business Fair Dismissal Code; or
  5. the dismissal was not a case of genuine redundancy.

In determining if the dismissal was harsh, unjust or unreasonable, the Fair Work Commission will consider whether:

  1. there was a valid reason for the dismissal related to the employee’s capacity or conduct;
  2. the employee was notified of that reason and provided an opportunity to respond;
  3. the employer allowed the employee a support person to be present at any discussions about the dismissal;
  4. the employee had previously received any warnings regarding their capacity or conduct;
  5. the size of the business of lack of any HR management resource specialists or expertise impacted on the procedures leading up to the dismissal; and
  6. there were any other relevant factors.

If an employee believes they have been unfairly dismissed, an application to the Fair Work Commission must be made within 21 days of the date of the dismissal. Once an application has been made, the employer will have seven days to file its response and the matter will be listed for Conciliation.

The Conciliation is usually held over the phone and provides the parties with an opportunity to resolve the dispute on their own terms. This may include an apology, the provision of a statement of service to the employee, reinstatement or compensation. If a matter is not resolved at Conciliation, it will be listed for a hearing in the Fair Work Commission.

The Fair Work Commission may order that an employee be reinstated to their position prior to the dismissal or receive financial compensation (up to 26 weeks’ ordinary pay) if it is satisfied that an employee has been unfairly dismissed.

If you believe you have been unfairly dismissed, or an employee has filed an unfair dismissal application against your business with the Fair Work Commission, contact our office today to discuss how we can help you on 5434 6666 in Bendigo or 5472 1588 in Castlemaine.