Unfair Dismissal Legal Advice

Terminating the employment of an employee can be one of the most unpleasant things that an employer may need to undertake. If you have recently terminated an employee’s employment you may be faced with an unfair dismissal or general protections proceedings (unlawful termination application), before Fair Work Australia, even if you believe you have acted in a procedurally fair manner.

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

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

It’s not an unfair dismissal if you, the employer, are a small business employer (i.e. employ fewer than 15 employees) and you follow the Small Business Fair Dismissal Code when dismissing an employee.

If you are not a small business employer, then you may be exposed to unfair dismissal applications when dismissing employees. Fair Work Australia will consider whether a dismissal is harsh, unjust or unreasonable, by accounting for a range of factors including:

• if there’s a valid reason for the dismissal relating to the employee’s conduct or capacity
• if the employee is notified of the reason and given an opportunity to respond
• if the dismissal relates to unsatisfactory performance, then whether the employee is warned about it before
• the dismissal.

We can assist with advice for Employers in defending an unfair dismissal or unlawful termination application. We can also provide expert assistance in ensuring that your business has a clear and detailed disciplinary policy in place that explains each step in the process.

To find out more about unfair dismissal and unlawful termination, contact our office today.