An unfair dismissal application can be made by an employee to the Fair Work Commission (FWC) upon certain circumstances. To succeed in an unfair dismissal application, the person bringing the claim must prove that:

  • they were dismissed;
  • the dismissal was harsh, unjust or unreasonable;
  • there was no genuine redundancy; and
  • the employee was not prevented from bringing a claim under the Small Business Dismissal Code

What is considered harsh, unjust or unreasonable?

In order to assess what is considered harsh, unjust or unreasonable, the FWC must consider the following issues (the list below is not exhaustive):

  • was there a valid reason for the dismissal based on the employee’s conduct/capacity (the reason)?
  • was the employee provided with notice of the reason?
  • was the employee provided with an opportunity to respond to the reason?
  • was the employee permitted to have a support person present at the discussions relating to the dismissal?
  • was the employee warned of the unsatisfactory performance before the dismissal?

What is a genuine redundancy?

A redundancy is genuine if  the employee was no longer required to perform his/her position due to changes in the operational requirements of the employer’s business and the employer has complied with all obligations and requirements in the Employment Agreement in relation to consultations with the employee about the redundancy.

Who is covered by the laws regarding unfair dismissal?

Only an employee who is covered by the national workplace relations systems can make an application for unfair dismissal.  In addition,  there are 2 requirements:

  1. the employee must have completed a minimum of 6 months at his/her place of employment (or 1 year if the employer is a small business at the time of the dismissal); and
  2. at the time of dismissal, the employee was either:
      • covered by a modern award or pre-modern award agreement;
      • earning less than the “high income threshold” amount; or
      • covered by an enterprise agreement or “an agreement based transitional instrument”

Conclusion

If you require any assistance in relation to what constitutes an unfair dismissal application or if you are eligible to apply, then please contact one of our employment lawyers today on 1300 544 755.

Emma Heuston

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