Unfair Dismissal occurs when an employee is dismissed and the dismissal was harsh, unjust or unreasonable, and the dismissal was not a case of genuine redundancy.
A genuine redundancy requires a valid reason and will see the employee paid a redundancy amount if they are entitled to be paid redundancy. Redundancy entitlements under the National Employment Standards are contingent on the termination being at the initiative of the employer. We can assist in assessing if there is a genuine redundancy for the purpose of a dismissal or whether redundancy entitlements should be paid.
A dismissal will be found to be unfair when it is harsh, unjust or unreasonable. In many cases the concepts will overlap, but not always. For example, some terminations may be harsh, but not unreasonable or unjust. The Fair Work Commission considers the following when making such a determination:
• Whether a valid reason for dismissal was given;
• Whether the applicant was given an opportunity to respond;
• Whether the applicant was given prior warnings and the procedures leading to dismissal were fair; and
• The size of the business and the sophistication of their human resources department.
A remedy for unfair dismissal will not be given if the employee has worked for less than six (6) months prior to the termination, or for one (1) year if the business employs less than 15 people. An employee may be entitled to be reinstated in their job or an amount the Fair Work Commission may calculate considering such things as amounts the employee would have been entitled to if the unfair dismissal had not occurred.
A termination of employment may be a dismissal when an employee was forced to resign because of the employer’s conduct and the employee had no real choice but to resign (sometimes referred to as Constructive Dismissal). Certain demotions may also amount to dismissal where there is a significant alteration to conditions and remuneration. We can assist in assessing these considerations.
Unfair Dismissal does not usually occur in circumstances where the employee is not permanent and is employed for a specified period of time (a fixed term contract) or for a specified project. In some circumstances, there is consideration as to whether there is a reasonable expectation that the employment would be ongoing.
Note that an unfair dismissal claim must be brought within 21 days from the date of termination, unless a valid reason exists for the delay.
A person who has been dismissed unfairly can seek relief in the form of re-instatement or compensation up to a maximum of 26 weeks’ pay.
The steps necessary for affording procedural fairness are not rigidly set by legislation, but the Fair Work Act 2009 refers to common features of general principles of ‘procedural fairness’. Proper notice of the basis for a dismissal is part of a procedurally fair process, as it allows the employee to respond. Where proper notice of an investigation or basis for dismissal has not been given, procedural fairness may not have been afforded. An employee will often be given opportunity to respond when notified of discipline or reasons leading to a dismissal. The procedure, or lack of fairness in the procedure, may provide a basis for the argument that the dismissal was unfair in all of the circumstances.
An investigation that an employer or third party engaged by an employer may not provide for adequate procedural fairness, such as where the details of the allegations are vague or scant. The employee would not, in those circumstances, have an adequate basis or opportunity to respond to the scant allegations and within that procedure the requisite “fairness” may be put into question.
It is not always a clear and simple exercise for an employee to determine their rights during or after such a process. An employee can be assisted by their representative, another employee or a human resources specialist or an employment/industrial relations lawyer.
The Fair Work Commission
The Fair Work Commission is a government tribunal set up to protect employees and to allow a mechanism for compensation for any employee who has been dismissed unfairly.
The Fair Work Commission may make an order for reinstatement in the job, or payment of compensation if payment is appropriate in all the circumstances.
There are a number of avenues an employee who has been terminated may need to assess taking. The two main types of dismissal applications the Fair Work Commission deals with are unfair dismissal and unlawful dismissal, such as where there has been a breach of the general protections. An employee who cannot make an unfair dismissal claim may be able to make a general protections claim. We can assist in ascertaining rights in such termination situations, as well as when there is no termination but there is still a breach an employee or prospective employee’s rights, such as where an employer takes disciplinary action or adverse action that breaches an employee’s rights.
Fair Go All Round
The expression a ‘fair go all round’ is a famous expression that applies to unfair dismissal applications. Although the expression seems simple and perhaps colloquial, it encompasses the breadth of considerations for tribunals, lawyers, human resources and industrial relations professionals who deal with dismissal considerations inside the workplace and within tribunals.
The tribunal’s objective, when presented with a valid application, is ensuring fairness in workplace termination situations, questioning whether the termination in the circumstances was objectively valid, justifiable and defensible. The conduct in question and the history of conduct of the employee may all factor into this assessment.
Schofield King Lawyers has successfully run dismissal and disciplinary claims through The Fair Work Commission. We have also acted in dismissal and disciplinary proceedings matters in the NSW Industrial Relations Commission.
Schofield King Lawyers make sure employees are aware of their rights to reinstatement, compensation and entitlements when dismissed.
Schofield King Lawyers’ fee structures can be reasonably adapted to particular circumstances and we are always happy to provide you with initial advice without cost or obligation, so that you are aware of your rights and the process before any decisions are made.
Please contact us for an obligation-free and cost-free initial consultation if you require advice or assistance.
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This is information is intended as a general overview guide of the subject matter and it is not intended as advice that should be relied on by the audience. The subject matter of the information may have been updated since posting.