What are Grounds for Unfair Dismissal?

Grounds for Unfair Dismissal

If you have been dismissed from your employment and you feel it was in a harsh, unjust or unreasonable manner, you may have been unfairly dismissed.

A dismissal is unfair if:

• you were dismissed from your employment;
• the dismissal was ‘harsh, unjust or unreasonable’;
• your dismissal was not a genuine redundancy; and
• the dismissal was not consistent with the Small Business Fair Dismissal Code (if your employer was considered a small business).

What does ‘dismissed’ mean?

You have been dismissed from your employment if:

• your employment was terminated at the initiative of your employer; or
• you were forced to resign from your employment as a result of your employer’s conduct or a course of conduct engaged in by your employer.

What is ‘harsh, unjust or unreasonable’?

A dismissal will be seen to be harsh, unjust or unreasonable if there is no valid reason for your dismissal and you were not given an opportunity to respond to the reason for your dismissal.

A valid reason for dismissal may relate to an employee’s conduct, capacity or performance.

Your employer must also follow a process when dismissing you.  That is, that you (the employee) were notified of the reason for your dismissal and were given an opportunity to respond.

What is an example of a dismissal being harsh, unjust or unreasonable? A dismissal may be considered to be:

• harsh – if the punishment does not fit the crime (the outcome was disproportionate when considering your misconduct);
• unjust – if you were not guilty of the alleged misconduct; or
• unreasonable – if the evidence before your employer did not support a conclusion that you ought to be dismissed.

Other factors taken into account when determining if a dismissal was harsh, unjust or unreasonable are:

• if you requested a support person be present at any discussions in relation to your dismissal and your employer said no. The Fair Work Commission (the tribunal that will determine your claim) will consider whether it was reasonable in the circumstances for your employer to do that;
• if you have been dismissed for poor performance, whether your employer previously warned you that your performance at work was not satisfactory; and
• the size of your workplace and your employer’s HR expertise (or lack thereof) and how this impacted on the procedures undertaken by your employer when dismissing you.

Not a genuine redundancy?

If you were dismissed on the grounds of your position being made redundant, but it was not a ‘genuine redundancy’ as set out in the Fair Work Act (the Act), then your dismissal may have been unfair.

Genuine redundancy is when your employer no longer requires your job to be performed by anyone due to operational changes in your workplace.  If your employer employs someone else to do your same role, then that is not a genuine redundancy.

In addition, if a modern award or enterprise agreement applies to your employment, your employer more than likely had an obligation to consult with you about the redundancy.  That is, discuss with you the proposed change (i.e. making your position of employment redundant) and if there were any alternative options or ways to minimise the adverse effect of this change on you, prior to your position being made redundant.

The final factor in determining whether a redundancy is genuine, is if it was reasonable in the circumstances to re-deploy you (give you an alternative job) within your employer’s business or an associated entity of the business. If there was an alternative job available then it may mean the redundancy was not ‘genuine’ within the meaning of the Act.

If a redundancy does not meet the ‘genuine redundancy’ requirements set out in Act, then your dismissal will more than likely be unfair.

The Small Business Fair Dismissal Code

If you are employed by a Small Business Employer and your dismissal was in accordance with the Small Business Fair Dismissal Code (the Code) then your dismissal will be seen to be fair.  The Code applies to employers who have a business that employs less than 15 employees.  If your employer has followed the Code when dismissing you, then it is more than likely your dismissal will be fair.

It is important to note that if you work for a Small Business Employer, you are not eligible to make an application for unfair dismissal unless you have worked for your employer for a period of 12 months.  If your employer employs 15 or more employees than the minimum period is six months.

Anderson Gray Lawyers are unfair dismissal experts and we are here to help.

If you think that you have been unfairly dismissed – do not delay, contact us immediately!  Don’t forget that time limits apply to lodging an unfair dismissal application.  You have 21 days in which to lodge an application for unfair dismissal with the Fair Work Commission from the date the dismissal took effect.

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