What is Unfair Dismissal?

In Australia, unfair dismissal happens when you have been fired from your job and the reasons provided by your employer for terminating your employment are considered as harsh, unjust or unreasonable. 

But what exactly does harsh, unjust or unreasonable mean? Whether you have been fired for reasons that are harsh, unjust or unreasonable will come down to a number of factors. Broadly speaking, in the world of employment law, the punishment must fit the crime. In most situations, it will come down to the individual facts of each case. 

For example, the firing of an employee who has been employed for over 20 years and was let go for not meeting sales targets in one year, could be considered harsh, unjust or unreaosble. The courts and tribunals will often look at factors such as the length of someone’s employment, the nature of the complaint made by the employer and whether or not they have an unblemished performance and behaviour history. 

On the other hand, an employee who has been employed for 12 months and is fired following an extensive investigation for sexual harassment and was afforded procedural fairness, is less likely to succeed in arguing that the termination of their employment was harsh. 

If you are fired, your employer in most instances must provide you with the opportunity to respond to the allegations that are made against you. This is referred to as natural justice or procedural fairness and can result in your dismissal being considered harsh if you were not given the opportunity. 

Each case is unique and the law surrounding unfair dismissal is evolving regularly in line with community standards and expectations. If you are fired and you meet the threshold requirements, you may be able to commence an action in the Fair Work Commission for unfair dismissal. However, there are number of important factors you need to consider.

First, you must commence your claim within 21 days of being dismissed. 

Second, the primary remedy that the Commission will seek to impose is reinstating you back to your job. The Commission will only consider compensation if the relationship with your employer has broken down and cannot be repaired. 

Finally, in most cases, any compensation you can secure is limited to six months’ wages. This is in addition to your normal entitlements such as annual and long service leave. 

If you have been sacked from your job, you may need legal advice from an employment lawyer. Contact Barsby Law if you have been sacked or think you are about to be sacked, for a free initial case assessment.