No matter which way you put it, being dismissed from a job can be an incredibly stressful situation to find yourself in. Statistics released by the Fair Work Commission in its Annual Report for 2017-2018 show that unfair dismissal claims account for over 40% of all complaints lodged with the Commission.

There are of course circumstances where a dismissal is justified. This would include where an employee has engaged in serious misconduct or is incapable of performing the requirements of a job.

However, even where a valid reason exists for the dismissal, employers must still ensure that they follow fair and transparent procedures when dismissing an employee.

When Is A Dismissal ‘Unfair’?

An employer who dismisses an employee without a valid reason, or without following fair and transparent procedures, may expose themself to a claim for unfair dismissal. Section 387 of the Fair Work Act 2009 (Cth) (“the Act”) sets out the legal threshold that must be met in order for a dismissal to be considered an “unfair dismissal.” Under the Act, a dismissal may be found to be unfair if it is harsh, unjust or unreasonable.

In determining what constitutes harsh, unjust or unreasonable conduct by an employer, the Fair Work Commission (“FWC”) will take into consideration the individual circumstances of each case.

The Act sets out a number of matters that the FWC must take into account in determining whether a dismissal is harsh, unjust or unreasonable. These matters include:

• 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 an opportunity to respond to any reason related to the capacity or conduct of the person,
• any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal,
• if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal,
• the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal,
• 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
• any other matters that the FWC considers relevant.

Key Cases

Dismissal for performance reasons

The case of Welsby v Artis Group Pty Ltd [2016] FWC 2251 involved an unfair dismissal claim by Mr Welsby, an employee who was terminated for performance-based reasons from his position as a Regional Manager of the Artis Group. Mr Welsby alleged that he had been unfairly dismissed as his employer had:

• failed to notify him that continued poor performance may result in termination, and
• in doing so, denied him a reasonable opportunity to improve his performance.

The FWC found that while the employer had previously discussed performance issues with Mr Welsby on a number of occasions, the employer had failed to formally warn Mr Welsby that his performance issues may result in the termination of his employment.

Accordingly, the FWC found that the dismissal was harsh, unjust or unreasonable and ordered an award of compensation to Mr Welsby.

Dismissal for serious misconduct

Serious misconduct is defined in regulation 1.07 of the Fair Work Regulations as:

• wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, or
• conduct that causes serious and imminent risk to:
  • the health or safety of a person, or
  • the reputation, viability or profitability of the employer’s business.

Generally, for an employer to validly terminate an employee without notice on the grounds of serious misconduct, the employer must have a “sound, defensible or well-founded” belief that the employee engaged in the conduct that forms the basis of the dismissal (Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333).

As is the case with dismissal on the basis of performance issues, an employee who is dismissed for an allegation of serious misconduct must first be afforded an opportunity to respond to the allegations against them.

In Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017] FWC 32, an employer dismissed a store manager on the basis of theft allegations. The employer relied on CCTV footage of the store manager that purportedly showed the store manager taking notes from a cash register.

The store manager was not provided with an opportunity to view the footage nor was she given a chance to respond to the allegations of misconduct prior to her dismissal. The unfair dismissal claim was successful as the FWC found that the employee’s dismissal was unjust in the circumstances.

Remedies For Unfair Dismissal

There are generally 2 remedies available to a successful unfair dismissal claimant. The first remedy is reinstatement. The Act provides that, where possible, reinstatement of the employee to their original or an equivalent position is the preferred approach.

If reinstatement is inappropriate in the circumstances, the FWC can order that the employer pay the employee a sum of money by way of compensation.

Compensation is capped at the lesser of either 6 months’ pay or the equivalent of half the unfair dismissal high income threshold. The FWC does not have any jurisdiction to order additional compensation for shock or distress.

How We Can Help

Unfair dismissal applications must be lodged with the FWC within 21 days after the dismissal taking effect. The FWC will only allow an application outside of the 21-day period where there are exceptional circumstances warranting the delay.

If you are an employee, it is therefore important that you seek expert legal advice as soon as possible after you become aware that you are being dismissed, in order to ensure that your interests are fully protected.

If you have been dismissed from your job in circumstances that could be considered harsh, unjust or unreasonable, call Quinn & Scattini Lawyers. Our expert employment litigation lawyers can assist you through the entire process, on a “no win, no fee” basis in approved cases.

Contact Us

Have you been unfairly dismissed? Get the best representation. Contact Quinn & Scattini Lawyers’ employment lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.