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Fair Work An Insight into Unfair Dismissal and Employee Rights

The world of employment is often fraught with complexities and challenges, especially when it pertains to issues such as bullying, unfair dismissal, and frontline employment defenders. In fact, understanding the intricacies of such matters is essential for both employers and employees to ensure fair practices and promote a healthy work environment.

The Key Factors of Unfair Dismissal

Under the Fair Work Act 2009, certain conditions must be met for an employee’s dismissal to be considered ‘unfair.’ For instance, it’s vital to ascertain whether the employee is protected from unfair dismissal and if they’ve indeed been dismissed before exploring the circumstances of the dismissal.

Central to this determination is whether the dismissal was harsh, unjust, or unreasonable. This process forms the heart of an unfair dismissal claim and entails looking at three key aspects:

  1. The dismissal was harsh, unjust, or unreasonable.
  2. It doesn’t align with the Small Business Fair Dismissal Code, if applicable.
  3. It was not a genuine redundancy case.

A valid compensation claim cannot be granted without these three conditions being met.

Dissecting the Terms: Harsh, Unjust, Unreasonable

According to the Fair Work Act, the definitions of ‘harsh,’ ‘unjust,’ and ‘unreasonable’ might overlap or appear in isolation. For instance, a dismissal could be harsh but not unjust or unreasonable, or it could be unjust without being harsh or unreasonable, and so on.

A dismissal may be seen as:

  • Unjust if the employee didn’t commit the alleged misconduct.
  • Unreasonable if the employer’s conclusion isn’t supported by the evidence.
  • Harsh due to the economic and personal ramifications on the employee, or if the punishment doesn’t fit the misconduct.

The Determining Criteria

When analyzing whether a dismissal was harsh, unjust, or unreasonable, several factors are considered, including:

  1. The validity of the dismissal reason relating to the person’s capacity or conduct, and its effect on the safety and welfare of other employees.
  2. The employee’s awareness of the dismissal reason and their opportunity to respond to it.
  3. The employer’s refusal to let the employee have a support person during dismissal discussions.
  4. Prior warnings to the employee about unsatisfactory performance, if the dismissal relates to such performance.
  5. The size of the employer’s enterprise and its likely impact on the dismissal procedures.
  6. The impact of lacking dedicated human resource management specialists in the enterprise on the dismissal procedures.
  7. Any other relevant considerations.

It’s a legal requirement for the Fair Work Commission to account for each of these criteria when deciding if a dismissal was harsh, unjust, or unreasonable. Failure to consider each point is a serious error of law and could potentially provide a basis for appeal.

What Happens When New Information Comes to Light?

Occasionally, new facts that were unknown at the time of dismissal but could justify it come to light. Such information should be considered, as it might change the original judgement about the dismissal’s fairness.

The Fair Work Commission’s ultimate duty is to determine, based on the evidence, whether there were valid reasons at the time of termination to justify the dismissal. It’s worth noting that the reason doesn’t have to be the one given by the employer; it could be any reason substantiated by the evidence presented to the Commission.

Navigating through employment laws can be complicated, but it’s crucial to ensure fair treatment for all parties involved. Understanding the concept of unfair dismissal and its determinants empowers employees and employers alike, fostering a harmonious workplace atmosphere.

Remember, frontline employment defenders are there to assist in cases of unfair dismissal, ensuring that every individual receives the compensation they deserve.

Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit

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