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Unfair dismissal is when an employee is dismissed from their job and the dismissal is harsh, unjust or unreasonable. Ultimately, it will be the Fair Work Commission who decides whether a dismissal is unfair.
Unfair Dismissal Claims
To protect against such claims, an employer should have adequate contracts/agreements and policies and procedures that provide clear disciplinary rules and procedures for termination.
If a dismissal is found to be unfair, employees can seek compensation of up to six (6) months’ salary.
What is Unfair Dismissal?
A person has been unfairly dismissed if the Fair Work Commission is satisfied that:
- The employee has been dismissed from their employment,
- The dismissal was harsh, unjust, unreasonable,
- In the case of a business with less than 15 employees (based on head count), the dismissal was not consistent with the Small Business Fair Dismissal Code, and
- The dismissal was not a case of a genuine redundancy.
Unfair Dismissal NSW
An employee has 21 days from the date the dismissal takes effect to bring an application for Unfair Dismissal. Any application made outside this timeframe will need to show exceptional reasons as to why the application was not made within the 21 day timeframe.
There are certain instances where an employer can object to an employee making an Unfair Dismissal Application on a jurisdictional ground. This means that the dismissed employee does not have the right to bring an Unfair Dismissal Application in the Fair Work Commission.
These objections include:
- The Unfair Dismissal Application has been made outside the 21-day timeframe.
- The employee had not served the minimum employment period (six (6) months or 12 months for a small business).
- The employee earned above the high-income threshold and was not employed by a Modern Award or Enterprise Agreement.
- The employee was not an employee or was a casual employee.
- The employer was not a national system employer.
- The employee was not dismissed or had resigned voluntarily.
- The dismissal was a genuine redundancy.
Whether the employee has engaged in serious misconduct will also need to be considered by the employer. Serious misconduct is defined in the Fair Work Regulations and involves an employee deliberately behaving in a manner that is inconsistent with the continuation of their employment and will allow an employer to terminate summarily.
Unfair Dismissal Recommendations for Employers
- Have clear policies and procedures in place in relation to performance management and termination of employees.
- Should an employee make an Unfair Dismissal Application in the Fair Work Commission, speak with our employment lawyers immediately.