Unfair Dismissal Criteria in Australia: A Guide for Employers
Firing an employee is a major decision you should never take lightly. In Australia, employees can lodge an unfair dismissal claim if they believe their termination was “harsh, unjust, or unreasonable.”
To stay compliant, small businesses with fewer than 15 employees must follow the Small Business Fair Dismissal Code. If you make a role redundant, you must ensure it qualifies as a “genuine redundancy” to avoid legal risks.
What Defines “Harsh, Unjust, or Unreasonable”?
The Fair Work Act provides clear legal definitions for these terms. While they often overlap, a dismissal might be:
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Unjust: The employee did not actually commit the alleged misconduct.
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Unreasonable: The evidence did not support the employer’s conclusion.
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Harsh: The dismissal has extreme economic or personal consequences for the employee.
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Disproportionate: The punishment does not fit the “crime” or the gravity of the misconduct.
Key Unfair Dismissal Criteria Australia’s Commission Reviews
When the Fair Work Commission decides if a dismissal was unfair, they evaluate several factors:
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Valid Reason: Did you have a valid reason related to the person’s capacity or conduct?
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Notification: Did you notify the employee of that specific reason?
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Opportunity to Respond: Did you let the employee respond to the allegations?
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Support Persons: Did you allow the employee to have a support person present during discussions?
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Performance Warnings: If the issue was performance-based, did you give them a prior warning?
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Business Size: How did your business size and lack of HR specialists impact your procedures?
Avoiding Non-Genuine Redundancy Claims
A redundancy is “non-genuine” if the employer still needs the job done by someone else. You must also follow all consultation requirements under the relevant award. Finally, if you could have reasonably offered the employee another role within your business, the redundancy may fail the legal test.
Protect Your Business
These rules help you understand the legal basis of a potential claim. However, every situation is unique. Because this is general advice, you should always seek professional guidance.
Need expert help? Contact Assurance HR at 1800 577 515 today to ensure your processes meet all unfair dismissal criteria in Australia.
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