Letting go of an employee is a big decision, and not one to be taken lightly. An employee has the right to lodge an unfair dismissal claim if they feel that the reason they were fired was “harsh, unjust, or unreasonable”, was not consistent with the Small Business Fair Dismissal Code (if they were employed by a business with less than 15 employees), or, if they were made redundant, theirs was not a case of genuine redundancy.

“Harsh, unjust, or unreasonable” are legal terms, with clear definitions. These definitions are spelled out in the Fair Work Act, which says:

It may be that the dismissal is…

  • harsh but not unjust or unreasonable
  • unjust but not harsh or unreasonable, or
  • unreasonable but not harsh or unjust.

The concepts of harsh, unjust or unreasonable may overlap.

A dismissal might be…

  • unjust because the employee was not guilty of the alleged misconduct
  • unreasonable because the evidence or material before the employer did not support the conclusion
  • harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
  • harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).

Criteria for considering harshness etc

In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

  • 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 Commission considers relevant.

For more information on the legal definitions defined in the Act, see https://www.fwc.gov.au/unfair-dismissals-benchbook/what-makes-dismissal-unfair.

What about a non-genuine redundancy?

The Fair Work Act defines a redundancy to be non-genuine if the employer:

  • still needs the employee’s job to be done by someone (eg. hires someone else to do the job)
  • has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement or
  • could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

Hopefully this will help you understand a bit more of the reasoning behind a potential claim, and what the legal basis of a claim may be. As we’ve said before, this is general advice only. Every situation is different, and if this is something you’re facing you’ll need to get proper advice. Give Assurance HR a call on 1800 577 515.

Other blogs

Genuine Redundancy, or Not Addressing the Issue: the importance of doing things right.

A recent case heard by the Fair Work Commission highlights clearly the importance of communication in the workplace and following all guidelines to th...