Unfair Dismissal & Fair Work Actions

In order to access the benefit of the unfair dismissal provisions under the Fair Work Act 2009 (Cth), an employee must have been employed by the employer for a duration in accordance with the below:

- If employers have more than 15 employees, you must have been employed for at least six months; or
- If employers have less than 15 employees, you must have been employed for at least 12 months.

In order to be eligible to commence unfair dismissal proceedings, a dismissal must have occurred. Such a dismissal must have been made by the employer, rather than a choice made by the employee. There is an exception to this rule in circumstances where the employee had no choice in resigning due to the conduct of their employer. For example, an employer engaging in conduct that results in the employee not properly being able to do their job. In these circumstances, where the employee may have resigned, the Fair Work Commission may hold that a constructive dismissal has occurred.

In order for dismissal to be deemed unfair, the dismissal could be characterised as at least one of the following:

- Harsh (where the dismissal was not a result of the employee’s misconduct and was considered an over-reaction);
- Unjust (if there was no misconduct by the employee or the misconduct was trivial); and
- Unreasonable (the employer’s decision to terminate the employee was unreasonable in all circumstances).

The Fair Work Commission may determine a dismissal to be harsh, unjust or unreasonable if:

- There was no valid reason for the dismissal relating to the employee’s capacity or conduct;
- The employee was not notified of the reason for their dismissal;
- The employee was not given an opportunity to respond to the reason provided;
- The employer refused to allow the employee to have a support person present at discussions relating to the dismissal; or
- No warnings were given previously in relation to the unsatisfactory performance.

The first thing the Fair Work Commission will consider in determining if a dismissal was unfair is whether a valid reason existed for the dismissal. Some examples of valid termination reasons include:

- Dishonest conduct and lying to superiors or co-workers;
- Embezzlement of money or theft of the employer’s or co-worker’s property;
- Endangering the safety of co-workers;
- Repeatedly breaching the policies and procedures of the employer;
- Abusing co-workers or clients;
- Failing to follow clear directions of a superior;
- Damaging the reputation of the employer;
- Continued poor performance despite being warned; and
- Being consistently absent from work without a valid reason.

A redundancy is only genuine if these three factors exist:

1. The employer no longer requires the employee’s job to be performed by anyone due to operational changes;

2. The employer complied with any redundancy provisions in the relevant modern award or enterprise agreement; and

3. It was impossible to re-deploy the employee into another job within the employer’s business

Strict time limits apply for employees that wish to lodge an unfair dismissal application. The application must be lodged within 21 days of the date upon which the dismissal took effect. There are only extremely limited exceptions to this rule, so it is important to seek legal advice as soon as possible to avoid running out of time.