What is Unfair Dismissal?

Definition of Unfair Dismissal

How do you define unfair dismissal? Unfair dismissal is a term in labour law to describe an act of employment termination without good reason, or contrary to the country’s specific legislation.

Unfair dismissal in Australia is the term used to describe a dismissal that is considered “harsh, unjust or unreasonable” under section 385 of the Australian Fair Work Act 2009.

Employees who consider they have been unfairly dismissed may seek compensation and/or reinstatement in a claim to the Fair Work Commission.

The most important things to remember when lodging an unfair dismissal application to the Fair Work Commission:

• As of 1 January 2013, your unfair dismissal claim must with the Fair Work Commission be lodged within 21 days from the date of your dismissal.
• You must have been employed for a minimum period of 6 months. You must have been employed for a minimum of 12 months in a business of less than 15 employees.
• If you earn over the High Income Threshold (currently $133,000), you must be covered by a Modern Award or Enterprise Bargaining Agreement.

If you meet the above three criteria, you may be eligible to lodge a claim to the Fair Work Commission. This will depend on the reasons behind your dismissal.

Employers can give a variety of reasons for the dismissal of an employee. In some circumstances they do not give any reason. If you have been dismissed due to a ‘genuine redundancy’, meaning that the company had a genuine need to re-structure the business which resulted in your job no longer needing to be performed by anyone, the company complied with consultation requirements and no redeployment options were suitable, then you will be unable to make a claim to the Commission.

Australian Workplace and Discrimination Representatives has run a number of high profile unfair dismissal cases, against large companies who are represented by international law firms. We have proven experience winning cases against employers like Qantas, Goodman Fielder and WorkPac.

To have a valid reason for dismissal, you employer must give a reason related to performance or conduct. The reason must be serious enough to warrant dismissal.

A common myth of unfair dismissal cases is that dismissal is only justified after “3 warnings and you’re out”. Whilst it may be in certain employers’ policies, this is not a rule. Actually judging what is and what isn’t an unfair dismissal case is much more complex. Even Members of Fair Work Commission find that determining what is an unfair dismissal is complex, as can be seen in several appeal cases where previous decisions have been overturned.

Reasons for dismissal commonly given by employers

Often employees are dismissed in circumstances where they accused of poor performance or misconduct. In dismissals relating to poor performance, if your employer has not given you a fair performance management process, you may have grounds to lodge an unfair dismissal.

In dismissals relating to misconduct, you may have grounds for a claim if you did not commit the conduct you were accused of, or if the reasons given are ultimately of a relatively minor matter. If you are dismissed for serious misconduct (also known as gross misconduct), your employer will generally not pay you your notice period.

Examples of alleged misconduct or serious misconduct which we can advise on include:

• failure to obey a reasonable management instruction
• breach of policies and practices
• poor attendance or attitude
• failure to follow sickness absence reporting procedures
• improper use of your employer’s property or failure to report damage to their property as soon as possible.
• dishonesty, theft and fraud
• deception, for example making untrue statements in employment applications or in statements relating to qualifications; falsifying references, falsifying documents relating to sickness/absence; falsifying expenses, etc.
• vandalism or sabotage
• fighting, or seriously disruptive behaviour or offensive or abusive language
• insubordination such as failing to follow a lawful instruction
• serious misuse of computer, email and internet systems, including accessing pornographic, offensive or obscene websites or distributing emails of this nature
• misuse of financial or other confidential information
• acts of bullying, harassment or discrimination
• being at work under the influence of drinks, illegal drugs or other intoxicants
• misconduct which may bring your employer into disrepute with customers, suppliers or others
• indecent or immoral acts
• going off site without permission during normal working hours
• betting, gambling or touting on your employer’s premises
• unauthorised absence
• serious breaches of your employer’s policies and procedures
• deliberate or serious damage to your employer’s property or causing loss, damage or injury through serious negligence
• serious breach of health and safety rules
• serious breach of confidentiality
• any criminal offence carried out during working hours or outside of working hours where such offence impacts or may impact upon the employee’s employment.

Whether you are an award employee or not, If you have been unjustly accused, or your employer has failed to properly consider mitigating circumstances or deal with other similar conduct, call us today to discuss your dismissal. Initial consultation is free.