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What Is Unfair Dismissal In Employment Law?

1 min read

09 Jun 2021

Under Australian law, employees may be protected against being unfairly dismissed from employment. Unfair dismissal in employment law is when an employee’s employment is terminated by their employer in a harsh, unjust or unreasonable manner. Unfair dismissal can also be claimed even if the employer had a valid reason terminate the employee, yet carried out the termination using the unfair procedures.

Employees who believe they have been unfairly dismissed from work, can lodge an application to the Fair Work Commission. This can be either an unfair dismissal and/or a general protection claim which are discussed below.

What Constitutes Unfair Dismissal?

As discussed above, unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. But what exactly defines harsh, unjust or unreasonable? Let’s take a look.

Australia’s Fair Work Commission may consider an employee has been unfairly dismissed if:

  • There was no valid reason for the dismissal
  • There was no fair process leading up to the dismissal
  • The dismissal was not a case of genuine redundancy
  • A person resigns from their employment but the resignation was forced by something their employer did

The Fair Work Commission decides if a dismissal is harsh, unjust or unreasonable; considering the following circumstances:

  • Was there was a valid reason for the dismissal related to the employee’s capacity or conduct?
  • Was the employee notified of the reason for the dismissal and given an opportunity to respond?
  • If the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable?
  • Whether the employee had been previously warned that their performance was unsatisfactory, or that they had engaged in other misconduct.
  • If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee.
  • Any other matters that the Fair Work Commission considers relevant to the circumstances of each fact scenario.
  • Whether employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code.
  • Whether the employee was employed for the minimum employment period to be able to make an unfair dismissal claim

Unfair Dismissal Claims can be made within 21 days of you being dismissed or forced to resign and can result reinstatement or, financial compensation of up to 26 weeks of wages.

What Is A General Protections Claim?

In Australia, ‘General Protections’ are series of “protections” in the Fair Work Act 2009 designed to protect workers’ rights. General Protections will:

  • Protect your workplace rights
  • Protect you against adverse actions (see details below)
  • Protect you against coercion, intimidation and misrepresentation
  • Protect you from sham contract arrangements
  • Protect you from discrimination at work
  • Protect freedom of association, for example being associated with a Union
  • Provide relief for people who are discriminated against, victimised or treated otherwise unfairly at work

Adverse actions against an employee can include an employer:

  • treating an employee poorly or differently because of race, sex, age, disability, or religion
  • Dismissing an employee or changing an employee’s job to their disadvantage because they have made a workplace enquiry. For example, making an enquiry as to why their superannuation has not been paid;
  • Treating an employee differently than others because they have made a workplace enquiry, for example about unsafe working conditions or unpaid entitlements;
  • Offering different and unfair terms and conditions compared to other employees because of their association with certain groups, or because of a workplace enquiry; or
  • Forcing, intimidating or misrepresenting an employment arrangement or agreement and the employee agrees to the terms of that employment or arrangement based on these misrepresentations or by force or by being coerced to do so.

General Protections Claims can be made while you are still employed and can stop your employer from terminating your employment if they have breached any of the above general protections provisions. General Protections Claims can also be made within 21 days of you being dismissed or forced to resign and can result in financial compensation for any loss and damage you have suffered as a result of the employers adverse action.

What Can A Lawyer Do For Me If I Have Been Unfairly Dismissed?

A lawyer can look at the circumstances of your employment termination and offer advice about the best course of action to take before you make an application to the Fair Work Commission.

Is your case clearly presented? We make sure to work out the best approach to take first as you may be entitled to more than you think. Our employment lawyers have an expert understanding of the law and legal principles and industry experience which gives us an advantage to get to the core issues quickly and effectively so we can get your claim moving.

I’m an Employer, How Do I Protect My Business From Unfair Dismissal Claims?

Your best course of action is one of prevention. Gain an understanding of and implement company policies that will ensure you meet the terms and conditions of employment under the contract you provide them, the relevant Award or Enterprise Agreement applicable to your business, the National Employment Standards and the Fair Work Act 2009. This will help you avoid unfair dismissal and general protections claims being brought to you when dismissing employees and managing employees.

Seek legal advice from an employment lawyer if you’re unsure whether you are providing the right protections to your employees or if you find employee misconduct serious or repetitive enough to warrant a dismissal.

Why Choose PCL?

At PCL we give you more control over your proceedings with us. Some firms offer what is called a ‘no win, no fee’ service. This can result in a client losing control of how their money is spent – the time spent on their file and some influence as to when they can settle their case and under what terms.

Whilst in some cases ‘no win, no fee’, may be a good option it is not always the best and most cost-effective option. We at PCL Lawyers offer a service tailored specifically to your legal needs. We can assure you, that with us you will get what you need, when you need it.

Paying for a lawyer upfront keeps you firmly in the driver’s seat, and us accountable to you at all times for the costs and scope of works.

For more information or employment law advice, Contact one of our expert employment lawyers to discuss your unfair dismissal or general protections claim by calling us on 1300 907 335 or by completing an online enquiry form.

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