Unfair dismissal occurs where an employee’s employment is terminated by their employer and the termination is considered to be harsh, unreasonable or unjust.

If an employee thinks that they have been unfairly dismissed by their employer, it may be possible that an unfair dismissal claim can be made to the Fair Work Ombudsman. A claim can also be made for threatened dismissal.

Note that there are strict time limits applicable in the lodging of a claim for unfair dismissal. If you believe that you have been unfairly dismissed, you must act immediately to be eligible to enforce your rights.

An employee has been unfairly dismissed if Fair Work Australia (FWA) finds that:

• they were dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy.

Whilst most employees who have had their employment terminated due on harsh, unreasonable or unjust terms will be eligible to make a claim, there are however some instances where a worker may not be eligible. Those workers who may not be eligible to file a claim are:

• apprentices or trainees;
• independent contractors;
• employees on a 3 month probation period if determined in advance;
• some casual employees;
• employees on contracts of employment for a specified period of time less than 6 months;
• employees engaged under a contract of employment for a specific task;
• employees who were employed by a small business (that is a business with fewer than 15 full time equivalent employees); or
• employees who earn more than the high income threshold (which is amended from time to time).

The law in this area is constantly changing, so even if you fall into one of these categories, you should contact us to confirm your eligibility to make a claim.

Where FWA upholds a claim, it may order an employer to:

• reinstate the employee to their former position;
• re-employ the employee in another position that the employer has available;
• provide back-pay and other entitlements owing from the time of the dismissal, where reinstatement or re-employment is ordered;
• compensate the employee by ordering payment of an amount not exceeding the remuneration of the employee during the 6 months before the dismissal, where reinstatement or re-employment is considered impracticable; or
• not dismiss the employee, where dismissal has been threatened.

An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and Fair Work Australia finds that:

• the employee was dismissed,
• the dismissal was harsh, unjust or unreasonable,
• the dismissal was not a case of genuine redundancy, and
• the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.

Fair Work Australia is the national workplace relations tribunal. An unfair dismissal application must be lodged within 14 days of the dismissal coming into effect. Fair Work Australia may accept a late application but only in exceptional circumstances.

In considering whether a dismissal was harsh, unjust or unreasonable, FWA must take into account:

• whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees),
• whether the person was notified of that reason;
• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
• if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal;
• the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal;
• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
• any other matters that FWA considers relevant.

If you are an employee who believes that they have been unfairly dismissed, or if you are an employer who would like to know your obligations prior to dismissing an employee, we can provide you with advice that is specific to your circumstances.

Call one of our Commercial Lawyers for free initial telephone advice on your circumstances on (02) 9525 8688.