What is an Unfair Dismissal in Australia?

What is an Unfair Dismissal?

An unfair dismissal in Australia is when an ex-employee has had their employment terminated unfairly by way of the organization, or if the worker resigns because they were pressured/forced to do so because of the behaviour of the organization (referred to as forced resignation).

A person has been unfairly dismissed when the Australian Fair Work Commission sees that:

  • The employee has been fired from the organization.
  • The dismissal was unjustified, harsh, or unreasonable.
  • The dismissal of the employee in a small business was not consistent with the Small Business Fair Dismissal Code.

Who Can Make An Unfair Dismissal Claim?

An ex-employee can submit an unfair dismissal claim if they have:

Completed the minimal employment period and are covered by a Modern Award (or award-based transitional instrument) or if an enterprise agreement (or agreement-based transitional instrument) applies to the person.

Please keep in mind, employees must have served a minimal employment period before they can make an unfair dismissal claim. Minimum employment intervals are:

  • One year for employees working for a small business (a business with less than 15 members of staff)
  • Six months if the employer is not a small business.

What constitutes an unreasonable or unjust dismissal?

Employers must always make sure procedural fairness is applied when dismissing an employee. When considering whether a dismissal is harsh, unjust or unreasonable, the Australian Fair Work Commission will take into account all of the following factors:

  • Whether there has been a valid reason for the dismissal related to the character’s ethics or conduct (such as its effect on the protection and welfare of different employees).
  • Whether or not the person became notified of that reason.
  • Whether or not the man or woman had been given any opportunity to respond to that purpose.
  • Any unreasonable refusal by the company to permit the presence of support for any discussion regarding the dismissal.
  • If the dismissal is due to unsatisfactory performance.
  • Whether the worker had been warned about the unsatisfactory performance prior to the dismissal.
  • Any different matters the Fair Work Commission considers relevant

What constitutes a genuine dismissal/redundancy?

Fair Work Australia defines a man or woman’s dismissal as a case of correct and legitimate redundancy if:

Fair Work Australia considers the employer did not require the employees activities and the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

If a new member of staff is issued the tasks performed by the person who has recently been dismissed, the dismissal may not be seen as genuine.

The employer must consult about redundancies in accordance with any Award or Enterprise Agreement that may apply.

If the employee could have found another job in the same or another business of the employer, it also may not be regarded as a genuine redundancy.

If you are not sure if you have been unfairly dismissed, talk to Unfair Dismissals Australia today!

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