Unfair dismissal is the most common claim made by dismissed employees or employees who feel they have been forced to resign. As an Employer, in order to defend an unfair dismissal claim, you will need to establish that you:

• had a valid reason for the dismissal; and
• that you followed a fair procedure leading up to the termination; and
• that the dismissal was not harsh, unjust or unreasonable in the circumstances.

There are numerous jurisdictional objections that may be raised in response to an unfair dismissal claim, depending on the circumstances of the dismissal, the employee’s remuneration if not covered by Award and when the application was made. Note that there are additional protections provided for small business employers.

Common mistakes we see when dismissing an employee

• Dismissing an employee after the ‘minimum period of employment’ has passed
• Small business employers not complying with the Small Business Fair Dismissal Code
• Not explaining the reasons for dismissal to the employee
• Not giving the employee an opportunity to respond to allegations / reasons for the dismissal.
• Not genuinely considering the employee’s response and having decided to dismiss the employee prior to meeting with them
• Not providing the employee with the opportunity to have a support person present at a meeting involving dismissal where requested by the employee
• Dismissing the employee without undertaking any formal performance management
• Dismissing the employee for serious misconduct where the conduct is not serious enough to do so
• Not meeting obligations when dismissing an employee due to redundancy

Key risks of getting it wrong

The primary remedy in the unfair dismissal jurisdiction is reinstatement, which means that the Fair Work Commission could order that an employee be reinstated to their position where they are successful with their unfair dismissal claim. Where reinstatement is not sought by the employee or considered reasonable by the Fair Work Commission, compensation will be ordered. The maximum compensation that can be awarded in an unfair dismissal matter is six months’ remuneration. The Fair Work Commission may also order reinstatement with compensation.  

A published Fair Work Commission decision declaring a dismissal unfair may also affect an employer’s brand and reputation.                                            

How can we help you?

We strongly recommend that Employers speak to one of our experienced Employment Lawyers before dismissing an employee so that the risk of an unfair dismissal claim (or any other claim) can be mitigated.

Our lawyers have a strong history of resolving unfair dismissal claims before they get to hearing. We also have an excellent record in defending unfair dismissal claims at hearing.