When is a dismissal unlawful or unfair?

An unfair dismissal is one where the circumstances surrounding the dismissal make it harsh, unjust, or unreasonable, or not as a result of a genuine redundancy (where the employer no longer requires anyone to perform the role). For unfair dismissal to be found, particular requirements must first be met, including:

  • Length of service;
  • Not exceeding the High Income Threshold; and
  • Lodging the claim within 21 days of the dismissal taking effect.

In some circumstances, employees may take action against an employer for certain unlawful activities (adverse actions) under the ‘General Protections’ provisions of the Fair Work Act 2009 (Cth), or for discriminatory conduct, harassment, or bullying. If those adverse actions lead to a dismissal, that dismissal could be considered in breach of the Fair Work Act.

Each case must be individually assessed, though examples of general protections breaches could include where employer action is taken on the grounds of temporary absences related to illness or injury, making a complaint or inquiry to an employer, or discrimination based on race, religion, or gender.

For employees

If you believe you have been unfairly terminated or harshly treated in your workplace, you should seek the advice of an employment law specialist. If you have been dismissed from your workplace and believe the circumstances surrounding your termination were harsh, unjust or unreasonable, you may be entitled to take action against your employer to enforce your rights. Remember, a ‘dismissal’ may also include situations where you felt compelled to resign due to certain conduct engaged in by your employer, known as a ‘constructive dismissal’.

Many factors must be considered when pursuing such a claim. Your legal advisor can help determine whether the circumstances leading to your dismissal were harsh, unjust, or unreasonable, and advise you on the best course of action to protect your legal rights with the best opportunity to move forward.

For employers

Managing performance and dismissal in the workplace can be complex, with the decision to terminate an employee exposing an employer to potential claims. Having good policies and procedures in place can reduce the risk of these claims – but complying with them is equally as important. When terminating an employee, employers must act in a fair and appropriate manner.

Even a procedurally fair termination can lead to an ex-employee claiming their termination was problematic and demanding compensation. Seeking advice from DKL early will help you understand whether their claim has merit, and what you should to do to save time, cost, and the stress of lingering litigation, as well as how to avoid it happening in the future.

Why choose DKL?

We treat all clients with respect and dignity, and understand that when confronting workplace issues, it is natural to feel vulnerable and confused. As an experienced team of employment law specialists, we have assisted many employees and employers manage unfair dismissal issues within their workplaces and reach tailored and effective solutions.

Call us on +61 (2) 9233 5669, email [email protected], or submit a webform to speak to one of our onboarding team about how we can help you get back to track with your business or your career.