What is an Unfair Dismissal in Australia?

Do you think your dismissal from your job was unfair dismissal? Have you recently been dismissed from your former place of employment?

You may be wondering if the termination of your position at the establishment was unfair.

Unfair dismissal is a dire matter and it is important to make sure your employee’s rights are being followed at all times!

Unfair dismissal occurs when an employer acts unfairly or unlawfully in the process of dismissing an employee from their enterprise.

As stated by the Fair Work Commission, the termination of the position must be rather harsh, unjust, or unreasonable.

Unfair dismissal is governed by the Fair Work Act 2009.

This article will outline the basic details of unfair dismissal and discuss what action you can take and when you can take it if your position of employment has been terminated unfairly.

What Makes a Dismissal Unfair?

When considering whether or not your dismissal from your employment was “fair” or not, several factors should be taken into account.

These factors, of course, including whether or not you were “dismissed” in the first place, but also include:

• Whether or not there was a valid reason for your dismissal that regards your personal work abilities;
• Whether or not your dismissal was based on allegations or accusations that are invalid or untrue;
• Whether or not you were informed of the aforementioned reasons for dismissal;
• Whether you were given the opportunity to respond to said reasons;
• Whether you were previously notified or warned about unsatisfactory workability or efforts;
• Any other factors the Fair Work Commission deems relevant to the matter.

The above factors are vital to the case of an unfair dismissal, so it is appropriate to gather evidence to prove them! All criteria must be considered in the matter for it to be sound, but all may not apply to the particular scenario and only relevant factors must be shown as evidence.

Fair Redundancy

Fair redundancy may also be relevant to your matter and will likely be considered by the court if so.

Fair redundancy is defined as a genuine lack of need for an individual to continue to do the job or task they are currently employed to complete.

This will likely be due to changes in the business itself, such as new machinery or decreased services, that cause the position you are currently holding to simply not be needed anymore.

The case of genuine redundancy will not apply if it is deemed reasonable that you may have been reassigned a position in the workplace or an associated entity of the employers.

Before considering suing your employer and placing time, effort, and your personal funds into the matter, it is wise to ensure that you were not dismissed under a fair redundancy, as your case will likely not be considered.

Examples of Unfair Dismissal

You may be wondering if your specific situation will be considered an unfair dismissal if seen in court.

This is a valid question as cases and verdicts vary and placing your time and money into a matter that you will gain nothing from is something you likely wish to avoid!

There are a variety of scenarios that can contribute to a dismissal being unfair or unlawful, including:

Dismissal due to Execution of a Workers Right:

It is unlawful for an employer to terminate your employment due to your execution of a right provided by Australian law. Some matters that fall under this category include:

• You were dismissed due to your participation in a worker’s union:
• You were dismissed due to your making of a complaint. This may include you bringing workplace discrimination, unhealthy/unsafe working conditions, overworking, poor treatment by managers or supervisors, etc, to the attention of your employer or “higher ups”.
• You were dismissed due to your request/attempts to take your legally entitled time off of work/leave. Entitled time off may consist of annual leave, sick leave, carers leave, long service leave, and maternity/parental leave.

Unfair Dismissal – Redundancy

As aforementioned, fair redundancy is considered by the fair work commission (FWC) a valid reason to terminate an employee. Unfair redundancy, however, is not and will likely be considered an unfair dismissal. Redundancy of the sort consists of:

• The continuous need to have a person employed to perform the task you were dismissed from.
• You reasonably could have been offered another position at the place of employment or another related to it.

Unfair Dismissal due to Discrimination

The dismissal or unfair treatment of an individual due to a discriminatory attitude is unlawful and is considered a violation of workers’ rights by the FWC. If you were dismissed due to any of the following factors, you were likely dismissed unfairly:

• Race;
• Gender;
• Sexual Identity;
• Religion;
• Marital Status;
• A Mental or Physical Disability;
• Nationality;
• Pregnancy;
• Political Views:

Small Businesses

If the business that you were dismissed from is considered a “small business”, meaning it employs 15 individuals or less, the rules are mildly different.

Dismissal by a small business is governed in Australia by the Small Business Fair Dismissal Code.

According directly to the Code,

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence, and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud, or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

Legal Proceedings if Unfairly Dismissed

If the commission decides that you have indeed been unfairly dismissed, compensation will generally be rewarded.

This is because you likely experienced losses, generally financially, due to your unemployment and, if you were made unemployed unfairly, you should receive compensation to cover said losses.

Compensation amounts, however, may vary and will be based on several factors.

These factors include your length of employment with the company, the income you would have been likely to receive if you had not been dismissed, and your personal efforts to resolve or minimise the losses that occurred by the dismissal, such as pursuing a new place of employment, and the amount obtained from work undertaken post-dismissal.

You must take legal action within 21 days of your dismissal and you must have been employed at the company for a minimum of 6 months.

Should I Seek Legal Help?

An unfair dismissal can be a really challenging thing to recognise, so it may be wise to seek the assistance of a professional before you take any action.

A professional will likely be able to help you in realising whether or not your dismissal was unfair, informing you of your rights in the matter, and assisting you in deciding whether legal action will be genuinely worth your time.

Some firms will offer a free phone consultation, where you can have a conversation with a professional to work out the details of your matter and set up some basics for your case with a firm (if you wish of course). Don’t be afraid to take advantage of that!

Unfair Dismissal – Key Takeaways

Being dismissed unfairly is a violation of your employee rights and you are legally entitled to pursue action against your employer if such an event occurs.

Being let go from your position at your job is already likely to be a headache, so it is important to prioritise yourself in the matter and try not to avoid taking legal action if you deem it appropriate.

Remember to consider the specific details of your termination to avoid taking action when your dismissal is unlikely to be considered by the FWC “unfair”.