When an employee is fired in a severe, unfair, or irrational way, it is known as an unfair dismissal. The law protects many employees from unfair dismissal. The following article provides information on What Is Dismissal, What Is Unfair Dismissal, Minimum Employment Period, Applying For Unfair Dismissal, Remedies For Unfair Dismissal and more.
What Is Dismissal
"Dismissal" refers to the employer informing the worker that they are no longer employed.
The employer might, for instance:
- Terminate a worker for their actions, with or without warning.
- Terminate an employee for failing to do their work to the acceptable standard and
- Inform an employee that their position is no longer needed, either immediately or in the future.
In certain situations, an employee's resignation due to the employer's actions may also be considered a dismissal.
What Is 'Unfair Dismissal'
1) A dismissal may be unfair if it is ‘harsh, ‘unjust’ or ‘unreasonable’.
Examples of ‘harsh’ dismissal
- the dismissal is an extreme response to the situation
- the dismissal has a very big ('disproportionate') impact on the employee’s economic and personal situation.
Example of ‘unjust’ dismissal
- the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.
Example of ‘unreasonable’ dismissal
- the evidence does not support the decision to dismiss the employee.
2) Should not make an employee redundant if it is not a genuine redundancy
3) Should follow the Small Business Fair Dismissal Code (if they are a small business - employs fewer than 15 people).
- one or more written warnings was given to the employee
- the ‘statement of termination’ was given to the employee
- signed statements from witnesses who support the evidence
Minimum Employment Period
Employees need to be employed for at least 6 months before they can apply for unfair dismissal.
Employees working for a small business need to be employed for at least 12 months before they can apply.
If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
Applying For Unfair Dismissal
The Fair Work Commission (the Commission) decides on cases of unfair dismissal.
Employees need to apply to the Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal.
If you think you have been unfairly dismissed, you should contact the Commission as soon as possible.
Remedies For Unfair Dismissal
- Reinstatement - An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person.
Reinstatement is the primary remedy in unfair dismissal cases. When a Commission Member decides a dismissal is unfair they will see if reinstating the employee is appropriate.
If the Commision decides reinstatement is suitable, the employer must follow some rules. They must restore the employee's job to what it was before the dismissal.
This means the position has the same pay, benefits and working conditions. It does not have to be the same position but the terms and conditions cannot be worse than the previous job.
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Compensation - An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
If the Commission finds a dismissal was unfair (‘harsh, unjust or unreasonable’), it may order compensation. An employee can only receive compensation for lost income ('remuneration').
An employee does not always receive compensation, even if the dismissal was unfair.
Before we can order compensation, we must decide if the employer should give the employee their job back.
It is important to know that most employees only receive a small amount of compensation for unfair dismissal. The median is between 5 – 7 weeks pay.
Every case is different. A decision about one case does not mean a similar case will have the same result.
Further Reading
Dealing With Unfair Dismissals at Work
For more information: Unfair Dismissal - Fair Work Commission
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