Understanding whether a dismissal constitutes as being unfair is more complex than it initially seems. Although a dismissal may seem unjust, or inappropriate, whether this is indeed the case can be a subjective view.

In this blog, the team at Marocchi Law demonstrate what is legally defined as being an unfair dismissal in New South Wales to help our clients better comprehend similar situations of their own.

What is an unfair dismissal?

An unfair dismissal involves an employee being terminated from their job role in a manner that is considered harsh, unjust or unreasonable. Being dismissed unfairly might therefore involve making a complaint that was viewed unfavourably, filing a variety of claims (such as workers compensation), inquiring about something specifically related to the employee’s employment (such as pay or superannuation) and much more.

It should be noted that there is a difference between unfair dismissal and wrongful dismissal – wrongful dismissal pertains to a breach of contract on the employer’s part, rather than the examples given above for unfair dismissal. This means that if an unfair dismissal case were to go to court, the court would only be evidence related to a contract breach.

Unfair dismissal in relation to small businesses

Employees are also required to have been employed for at least six months before they’re allowed to apply for unfair dismissal, but employees working for a small business must have worked for the employer for 12 months before they are able to apply. A small business qualifies as such when they employ less than 15 staff.

The Small Business Fair Dismissal Code has been introduced to manage unfair dismissal claims for small business. The code (available on the unfair dismissal page on the Fair Work website) defines what constitutes unfair dismissal – to briefly summarise, small business owners can terminate an employee with no notice if an employee’s conduct constitutes serious misconduct, such as theft, fraud, violence and serious breaches of occupational health and safety procedures.

If a small business owner can provide evidence to the Commission that an employee breached the code, the Commission will deem a dismissal to be fair.

What is considered by the Fair Work Commission in an unfair dismissal case?

Termination of employment that can be considered harsh, unjust or unreasonable involves a set of select criteria which the Fair Work Commission will consider. These include:

  • Terminating an employee due to unsatisfactory performance without having informed them previously that their performance was unsatisfactory.
  • The validity of a dismissal in relation to an employee’s conduct in the workplace and how it might affect safety and welfare of other employees.
  • Unreasonable refusals by employers to allow for employees to have a support person present at discussions relating to dismissal
  • The potential for a lack of dedicated human resource management to have affected procedures related to the termination of the employee.

These are just a select few ways that unfair dismissal might come about. Outcomes delivered by the Fair Work Commission can be diverse, with remedies potentially being reinstatement, compensation or non-financial results, such as letters of service.

What happens if I believe I’ve been unfairly dismissed?

Navigating the field of unfair dismissal can be a legally difficult one due to potential ambiguity found in these laws. Experts are highly recommended to help walk you through how unfair dismissal – for this reason, we recommend you get in touch with the knowledgeable team at Marocchi Law to ensure that you’re properly walked through every aspect of unfair dismissal, such as relevant applications, Fair Work Commission conferences and hearings, and information in layman terms regarding claims for damages and compensation.

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