Unfair dismissal occurs when an employee is dismissed from their job in a harsh, unjust or unreasonable manner and is covered by the Fair Work Act (Cth) 2009. Such claims are dealt with by the Fair Work Commission (the FWC).

Wrongful dismissal is covered by the Common Law and occurs when an employer dismisses an employee in a manner which is in beach of the terms of the employee contract. For example, without providing adequate notice, or on grounds of misconduct by the employee where such misconduct does not justify dismissal.

Who is protected from unfair or wrongful dismissal?

Not everyone is protected from unfair dismissal. Employees who are considered a national system employee, and who have been employed for at least 12 months (for small businesses) or 6 months (for larger businesses) and are either covered by a modern award, or enterprise agreement, or who earn less than the high income threshold, have 21 days from the date of their dismissal taking effect to apply to the Fair Work Commission if they believe they have been unfairly dismissed.

Casual employees are not protected from unfair dismissal, unless they were employed on a regular and systematic basis and had a reasonable expectation of continuing work on such basis.

Other requirements for unfair dismissal

To bring an unfair dismissal claim a person needs to have had their employment terminated on their employee’s initiative, or if the person resigned, they need to prove that they were forced to do so due to the conduct of their employer.

The Fair Work Commission will also need to be satisfied that the dismissal was not a case of genuine redundancy. A person’s dismissal is a case of genuine redundancy if the employer no longer requires the person’s job to be performed by anyone and all rules regarding redundancy have been followed.

In considering whether a person’s dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the factors outlined in Section 387 of the Fair Wok Act (Cth) 2009. These include:

(a)  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); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer‘s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  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

(h)  any other matters that the FWC considers relevant.

Potential Remedies

The primary remedy for unfair dismissal is reinstatement. However, the FWC may consider reinstatement inappropriate, in which case they can make an order requiring the payment of an amount of compensation. This amount is capped at 26 weeks’ pay.

The remedy for wrongful dismissal is damages for breach of the employment contract. These damages may be equal to the period of notice that the employee should have received.

How we can assist

If you have been dismissed from your job in circumstances which you consider to be unfair, or in breach of the terms of your employment contract, our expert employment lawyers can assist in helping you ascertain if you are eligible to make an unfair dismissal application or to bring a wrongful dismissal claim, prepare the unfair dismissal application with the Fair Work Commission and appear for you in Fair Work.

Talk to one of our expert lawyers today.