What Is Unfair Dismissal?

If a staff member is let go from their job in a manner that is harsh, unjust or unreasonable, this is unfair dismissal. Key components of unfair dismissal are that the dismissal was not because of genuine redundancy, it was either unreasonable, harsh or unjust, or the dismissal was not carried out according to the Small Business Fair Dismissal Code if it applied to them.

The following factors influence whether a dismissal is harsh, unreasonable or unjust according to Fair Work;

• The dismissal was not connected to the staff member’s conduct or capacity
• The employee was not told of the reason, or given a chance to respond
• Whether a support person was allowed to attend conversations about dismissal
• There were no warnings of unsatisfactory work performance
• Whether the business size and resources affected the dismissal procedure
• When a staff member believes they have been unfairly dismissed, they have to have;
• Worked for a minimum of 6 months, or 12 months in a small business (a business with less than 15 employees)
• Either have an annual earning income which is less than the high income threshold, or be covered by a registered agreement or award
• Staff must apply within the 21 day deadline

A key thing to note about unfair dismissal is the dismissal can either be initiated by the employer, or the employee has resigned but this was forced because of the actions of the employer.

If an ex employee makes an application to the Fair Work Commission for unfair dismissal, the next steps are for the employer to respond in a written application to the Fair Work Commission explaining why the staff member was dismissed. The matter will then be closed or progress, if it is progressed, there may be a conciliation process to resolve the matter informally. If this doesn’t work, the application is forwarded on to a Commission Member who makes a decision on whether the dismissal was unfair or not.

We’ve written more about unfair dismissal here.