Question: What constitutes an unfair dismissal?
Answer:According to the Fair Work Ombudsman, unfair dismissal is “when an employee is dismissed from their job in a harsh, unjust or unreasonable manner”.
Essentially this means that when an employee is fired or ‘let go’ and has reasonable cause to challenge the basis upon which his employment has been terminated, he may bring legal action against his employer in an unfair dismissal claim. These claims are covered in statute by the Fair Work Act 2009 (The Act) and the Fair Work Commission decides on cases of unfair dismissal.
When assessing an unfair dismissal claim, consistent with Section 385 of The Act, a court or tribunal will focus on the circumstances of the dismissal, the harshness, unfairness or unreasonableness of the dismissal, whether or not the decision to dismiss was consistent with the regulations under the Small Business Fair Dismissal Code, and whether or not the dismissal was based on actual redundancy.
Unfair dismissal must be distinguished from unlawful termination which is handled differently.
For more info on how to avoid unfair dismissal claims, or how unfair dismissal cases are decided, see our articles.
If you feel that you have been unfairly dismissed, or are an employer facing a claim from a former employee, speak to one of our specialist employment lawyers.
