Know Your Rights: Unfair Dismissal

Currently, unfair dismissal claims are inundating the Fair Work Commission with a 65% spike in unfair dismissal applications in comparison to this time last year.

Amidst the coronavirus crisis, questions such as ‘when am I within my rights to dismiss an employee’ become problematic.

As a first point of reference, section 385 of the Fair Work Act 2009 (Cth) (FWA) states that a person has been unfairly dismissed if the Fair Work Commission is satisfied that the dismissal was harsh, unjust or unreasonable. What does this mean for employers?

The Legislation

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account:

1. 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);
2. whether the person was notified of that reason;
3. whether the person was given an opportunity to respond;
4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
5. whether the person had been warned about that unsatisfactory performance before the dismissal;
6. if the size of the employer’s enterprise may impact their consultation procedures;
7. if the absence of human resource management expertise in the enterprise impacted on the procedures followed in effecting the dismissal; and
8. any other matters that the Fair Work Commission considers relevant.

How does the legislation work in practice?

Overtime, the Fair Work Commission has clarified the interpretation of what is ‘harsh, unjust or unreasonable’.

• The term ‘unjust’ relates the truth of the reason for termination (i.e. where an employee is dismissed for conduct that he or she did not commit) or the uneven application of the employer’s standards relating to.
• The term ‘reasonable’ is interpreted as relating to the reasonableness of the investigation or performance management process, as well as the reasonableness of the employer’s conclusions as to those processes. For example, whether it is objectively reasonable for the employer to draw the conclusions that support termination.
• The content of the term ‘harsh’ includes the various consequences of termination upon an employee’s personal and economic situation, the method and timing of dismissal and the proportionality of the penalty of dismissal given the misconduct alleged.

Next Steps

Employers may feel overwhelmed when attempting to dismiss an employee without experiencing the backlash of an unfair dismissal application. The team at Antunes Lawyers have substantial expertise with providing pre-dismissal advice, representing employers in an unfair dismissal dispute and reviewing policies and contracts to ensure compliance with the legislation.

Contact our office on 02 9964 0499 to organise a consultation or send us a message via the form below and we will get back to you.