What is Unfair Dismissal?

What is Unfair Dismissal?

In Australia, under section 385 of the Fair Work Act (2009), a person has been unfairly dismissed if the Fair Work
Commission is satisfied that all provisions obtain:

  • (a) the person (the employee) has been dismissed; and
  • (b) the dismissal was harsh, unjust or unreasonable; and
  • (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • (d) the dismissal was not a case of genuine redundancy.

A dismissal may be considered to be unfair for a wide variety of reasons including the following:

  • your employer was unhappy with your performance and suddenly dismissed you without giving you adequate warning or
    the opportunity to improve your work performance;
  • your employer dismissed you without giving you an adequate opportunity to address their concerns; — your employer
    behaved irrationally toward you by dismissing you when a warning would have been sufficient;
  • your employer treated you so severely that you felt that you had no option but to resign;
  • you were made redundant but someone else was given the same job as you had;
  • you were made redundant without your employer trying to find a suitable alternative vacancy for you;
  • your employer had no legitimate reason for dismissing you.

Who can make an Unfair Dismissal Claim?

To make an unfair dismissal claim you must be an employee covered by the Fair Work Act who is “protected” from unfair dismissal. You are protected by the legislation if:

  • you were an employee of the employer that you are making an unfair dismissal against, and
  • you worked there for at least 6 months (if the employer had more than 15 staff), or
  • you worked there for at least 12 months (if the employer had less than 15 staff), and
  • you earned less than $133,000 per annum (as of 1 July 2014) or are covered by an award or an industrial agreement.

Casual employees:

Generally, casual employees are not afforded the right to make a claim of unfair dismissal even if h/she considers that their dismissal” harsh, unjust or unreasonable .” However, if you have been employed by the employer on regular basis over an extended period of time it is possible that you can succeed in a claim for unfair dismissal.

How Long Do I Have To Make An Unfair Dismissal Claim?

It is extremely important that you must lodge an application for unfair dismissal within 21 days after you were dismissed. In exceptional circumstances, The Fair Work Commission can exercise its discretion to extend this deadline.

Potential Outcomes of Your Claim:

If the Fair Work Commission is satisfied that you were unfairly dismissed, it may make an order for the reinstatement of your employment and/or monetary compensation of up to six months of your wages.