What is an unfair dismissal?
Unfair dismissal is where:
- A person has been dismissed;
- The dismissal was harsh, unjust or unreasonable; and
- The dismissal was not consistent with the Small Business Fair Dismissal Code (for businesses that has less than 15 employees); and
- The dismissal was not a case of genuine redundancy
What are the employer’s rights?
Employers must understand the process and procedure for bringing employment to an end. The issue to avoid here is whether the employer’s act can be classified as unfair dismissal.
Employment can end for various reasons, including:
- Poor performance
- Misconduct
- Dangerous behaviour
- Refusing to follow instructions
- Redundancy
Depending on the size of the business, the employer must follow rules of dismissal and notice period, plus make final payouts (where applicable) to avoid any costly procedure being brought against an employer.
What are the employee’s rights?
Termination of employment is a right of the employer. However, there may be circumstances where the employer fails to follow the necessary steps and procedures to terminate. This can result in the employee taking action against the employer.
It is the right of an employee to make an application to remedy the unfair dismissal. It is recommended that the employee seek to resolve any issue with the termination of employment with the employer directly, with legal advice.
Sometimes, these conversations do not resolve the issues. In this case, employees should seek legal advice before deciding which application to make with the Fair Work Commission. As a starting point, an employee should look to the Fair Work Ombudsman for information.
What to do if you have been unfairly dismissed?
If you have satisfied the eligibility requirement for an unfair dismissal claim, you can apply with the Fair Work Commission for remedy.
Note that an application must be made within 21 days of the dismissal. If you miss this deadline, you may be considered ‘out of time’ unless it is extended under exceptional circumstances by the Commission.
What happens if I am dismissed during probation- can it still give rise to an unfair dismissal claim?
That depends.
Probation usually commences at the start of your new employment. The purpose of the probation period is to allow the employer and employee to check whether the employee is suitable for the role they have been hired to do.
If an employee is unsuitable for the position they were hired to do, the employer may end the employment by giving notice to the employee. However, the employer must have reasonable grounds to terminate the employment to avoid an unfair dismissal claim.
