Pursuant to the Fair Work Act 2009 (Cth) (“Act”), an employee will be taken to have been “unfairly dismissed” if the Fair Work Commission (“FWC”) is satisfied that:
- the person has been dismissed;
- the dismissal was harsh, unjust or unreasonable;
- the dismissal was not a case of genuine redundancy; and
- the dismissal was not in accordance with the Small Business Fair Dismissal Code (to the extent the business is a “small business”).
When is a dismissal considered harsh, unjust or unreasonable?
The Act sets out the factors that the FWC must take into account when considering if a dismissal is “harsh, unjust or unreasonable”. These factors include (among other things):
Was there a valid reason for the dismissal?
The Act requires the FWC to take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct. For a reason to be valid, it needs to be a sound, well-founded and “defensible” reason: Selvachandran v Peteron Plastics Pty Ltd.
Provision of notice and an opportunity to respond
The Act provides that the FWC must take into account whether the person was notified of the reasons for their dismissal and given an opportunity to respond.
In Bajwa v Investment Services Australia Pty Ltd, it was held that the employer had contravened the Act because of a failure to give notification and the letter of dismissal was brief and disingenuous. In the case of Nivag v City Hotel, a notification of termination on the grounds that the employer was “restructuring” was considered “woefully inadequate” where the employee had been employed for almost three years.
In Theoctistou v Austaron Pty Ltd t/as Austaron Surfaces, it was found that the employee had not been given an opportunity to respond to his unsatisfactory conduct because it was ‘sprung’ on him at a meeting. The employee had been given no warning that his conduct might lead to his dismissal and therefore, given no reasonable opportunity to rectify or modify his behaviour.
The Act requires the FWC to take into account whether the person had been warned about their unsatisfactory performance before the dismissal. In Lankam v Federal Express (Australia) Pty Ltd t/as Fed Ex, it was held that sufficient prior warning had not been provided to an employee who was advised of his unsatisfactory performance at the time of his dismissal.
Was the dismissal a case of genuine redundancy?
An unfair dismissal application cannot be made where the employee’s termination was a case of genuine redundancy. A genuine redundancy occurs where an employer no longer needs the employee’s job to be done by anyone as a result of “changes in operational requirements” within the business. Fletcher Law can further advise on this if needed.
Small Business Fair Dismissal Code
To the extent the relevant business is a “small business” the provisions of the provisions of the Small Business Unfair Dismissal Code (“Code”) must also be adhered to.
A small business is one which employs fewer than 15 employees regardless of the number of hours worked.
The Code requires an employer to provide an employee with a reason why he or she is at risk of being dismissed. The reason must be a valid reason that is based on the employee’s ability to do their job. The employee must then be given an opportunity to respond and resolve the problem.
If the employer fails to comply with the Code then they may be found to have unfairly dismissed an employee.
Please contact Fletcher Law for further assistance.