As a business owner, director or manager, you might find a notification on your desk one day that indicates that an employee has submitted a claim to Fair Work Australia (FWA) for unfair dismissal.

Before getting stressed, remember that FWA first assesses if the following three factors are true:

1) Was the employee actually dismissed?

2) If yes, was the dismissal harsh, unjust, unreasonable or constructive dismissal?

3) Or, was the dismissal, not a true redundancy?

But what does it mean to be dismissed

The term dismissed is defined in the Fair Work Act as a situation where: a person’s employment has been terminated at the employer’s initiative, or. a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.

The analysis of whether there has been a termination at the initiative of the employer for the purpose of s.386(1)(a) of the Act is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.

A dismissal does NOT include where:

  • a person is demoted in his or her employment without a significant reduction in duties or remuneration and remains employed by the employer,
  • a person was employed under a contract for a specified period of time, specified task or for the duration of a specified season and the employment comes to an end at the end of that period, or
  • a person had a training arrangement with their employer which:
  • specified that the employment was limited to the duration of the training arrangement, and
  • whose employment ends at the end of that training arrangement.

What Is Deemed Unfair?

There are several factors that would lead to a conclusion of harsh, unjust, unreasonable or constructive dismissal. These include, but are not limited to:

  • Did the employee’s conduct or capabilities warrant a dismissal?
  • Was a reason given to the employee previously and were they given a fair chance to respond and be heard?
  • Was the employee bullied by not being allowed a support person, an interpreter or other requested support person at any discussions relating to dismissal?
  • If the dismissal was relating to performance, what performance management plan was put into place?
  • If a performance management plan was put into place, but the employee failed to meet the agreed goals were they put through a correct and documented disciplinary process?
  • Does the size of the business affect the dismissal process, e.g. the absence of an HR manager in a four-person SMME?
  • There is a long list of factors considered by the FW.

Next Steps By The FWA

The primary aim of Fair Work Australia (FWA) is to reduce conflict and get a fair solution for all parties involved. It also seeks to resolve them away from courts. A solution by agreement is their main aim. They follow these steps:

1. The unfair dismissal claim is lodged.

2. The claim documentation is checked by the relevant FWA department to ensure it is complete and valid.

3.  A formal notification is sent to the head office of the employer.

4.  A conciliation date is proposed, and parties are instructed to attend.

5.  The FWA attempts to conciliate the application to achieve mutual resolution with all parties.

6.  If the conciliation is unsuccessful, the FWA will file the application as unresolved, and a new process for court proceedings will start, with legal specialists now taking over.

Under the Fair Work Act s.385 a person has been unfairly dismissed, if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:

  • was harsh, unjust or unreasonable, and
  • was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business), and
  • was not a case of genuine redundancy.

Contact our professionals for assistance before setting up conciliation meetings with the FWA – best step is to contact us as soon as you think an employee may lodge a complaint so we can prepare the response. We can work side-by-side with you to bring about the most successful outcome possible.

Ideally however having the correct support BEFORE any dismissal takes place may well stop any FW applications. We have support packages that are there when you need them –

Case Law

Sharpe v MCG Group Pty Ltd [2010] FWA 2357 (Asbury C, 22 March 2010).

An employee who had notified her employer that she would be unable to attend work due to medical reasons, and was then terminated, was found to have been terminated at the initiative of the employer. An argument that the employee had abandoned her employment by not attending for work as directed was rejected. It was held that the employer had terminated the employment.

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

The applicant employee had submitted a letter of resignation which effectively gave 7 months’ notice. Her employer purported to accept the resignation but make it effective immediately. It was found that the termination of employment occurred at the employer’s initiative.

Related Tag: Unfair Dismissal Claim