What is unfair dismissal?

A person has been unfairly dismissed when Fair Work Commission is satisfied that:

  • the person has been dismissed;
  • the dismissal was harsh, unjust or unreasonable;
  • the dismissal was not a case of genuine redundancy; and
  • the dismissal was not consistent with the Small Business Fair Dismissal Code (where the employer is a small business employer)[s 385 Fair Work Act 2009 (Cth)].

What constitutes harsh, unjust or unreasonable?

Fair Work Commission will look at all the following factors when considering whether a dismissal was harsh, unjust or unreasonable:

  • 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 any opportunity to respond to that reason;
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal;
  • if the dismissal was related to unsatisfactory performance by the person – whether the person had been warned about the unsatisfactory performance before the dismissal;
  • whether the size of the employer’s enterprise is likely to impact on the procedures followed in the dismissal;
  • whether a lack of dedicated human resource management specialists or expertise in the employer’s enterprise are likely to impact on the procedures followed in the dismissal; and
  • any other matters that the Fair Work Commission considers relevant [s 387].

Sexual harassment at work is a form of serious misconduct, and can be a valid reason for dismissal (including without notice) under the Fair Work Act 2009 (Cth).

General Protections

There are prohibitions against dismissing someone on discriminatory grounds or for other reasons such as engaging in industrial activity or being temporarily absent from work because of illness or injury. This is not the same as unfair dismissal and is dealt with under the General Protections part of the Fair Work Act 2009 (Cth) (Part 3-1).