5 Frequently Asked Questions From Employers on Unfair Dismissal

The law surrounding unfair dismissal can be complex and there are any number of matters which can determine whether a dismissal is harsh, unjust or unreasonable according to the Fair Work Act 2009. Every year, the number of unfair dismissal claims made by employees against their employers is continuing to grow. In 2019, there were 14,652 unfair dismissal claims lodged in the Fair Work Commission, up from 13,538 claims made in 2018. 

With the number of unfair dismissal claims lodged rising, it’s imperative for employers to be proactive with seeking legal advice if a claim is made against them, as well as thoroughly educating themselves on the Fair Work Commission’s processes related to unfair dismissal claims. Below, we have answered five questions we are commonly asked by employers regarding unfair dismissal claims.

FAQ #1: What is an unfair dismissal?

It is considered an unfair dismissal if:

1. you were dismissed, and

2. your dismissal was harsh, unjust or unreasonable, and

3. your dismissal was not a case of genuine redundancy, and

4. if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code (if you are a small business for the purposes of the Act (employing fewer than 15 employees), and

5. the dismissal was not a case of genuine redundancy. 

FAQ #2: What does the Fair Work Commission consider in an unfair dismissal case?

The Fair Work Commission takes into consideration the matters listed in Section 387 of the Act when determining whether a termination is harsh, unjust and unreasonable in the circumstances, including:

• 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)

• whether the person was notified of that reason

• whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

• if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

• the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal

• the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and

• any other matters that the Commission considers relevant

The Fair Work Commission will look at each dismissal on a case to case basis and make a decision based on the facts and matters above. We strongly recommend that if you are not sure of what your requirements are when considering the dismissal of an employee, you should seek legal advice prior to terminating their employment.

FAQ #3: How do I avoid an unfair dismissal claim being brought against me?

To minimise the risks of an unfair dismissal claim and to protect your business, we recommend being proactive and with the following:

• Gain a clear understanding of ‘unfair dismissals’ and the process

• Manage and enforce your company policies to ensure that the terms and conditions of employment are made clear from the beginning and meet the standards set out by the Fair Work Act 2009

• Address conduct issues and handle disputes in a consistent manner

• If you believe there has been misconduct serious enough to warrant dismissal, seek advice from an employment lawyer before proceeding with dismissing an employee.

FAQ #4: Is an unfair dismissal claim the same as a general protections claim?

A general protections claim is a different concept to unfair dismissal. General protections rights, which apply to all workers, regardless of their length of employment, prohibit you from taking adverse action against a worker (including dismissing anyone) because of the following:

• their race, colour, sex, sexual orientation, age, religious beliefs, mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (although it makes an exception if it is an inherent requirement of the job)

• they have been away from work due to illness or injury

• they are or aren’t a union member or are running for office as a union representative

• they are on parental leave, paid or unpaid

• they are away doing emergency volunteer work

• they have filed a complaint or started proceedings against you or someone you employ.

If you dismiss an employee for any of these reasons, you will likely face costly fines, as well as the prospect of having to pay the worker compensation or even being made to rehire them.

FAQ #5: What do I do if an unfair dismissal claim is made against me?

As an employer, it’s likely you will only find out about an unfair dismissal claim when you receive a copy of the dismissed employee’s application from the Fair Work Commission. Often, this will be the first time you are made aware that the employee has made a claim against you. Your initial response may be confusion, bewilderment or annoyance, especially if you don’t know your next steps.

It’s crucial to stay calm and not ignore this matter as it is the beginning of a formal legal process and won’t simply ‘go away’. Even if you believe the dismissal was just, you must prepare your arguments in response appropriately.

Our best advice is to get in touch with a trusted employment lawyer as soon as possible if a claim is brought upon you as they will advise you on the best steps to take depending on the circumstances of the dismissal and to protect your business.

At Optimum Legal, our team of employment lawyers are by your side every step of the way. Book your free initial consultation, here.