Understanding the criteria required by the Fair Work Commission is the first step in navigating a successful unfair dismissal claim.
What is unfair dismissal?
The Fair Work Act outlines the process for making an unfair dismissal application, when an employee is dismissed from their role in a harsh, unjust or unreasonable manner. To meet the requirements of the Fair Work Commission, a dismissal will be considered unfair if:
- you were dismissed;
- the dismissal was harsh, unjust or unreasonable (see below);
- the dismissal was not a case of genuine redundancy;
- the dismissal occurred in the past 21 days; or
- if the employee worked for a small business and was dismissed the fair work will consider the dismissal unfair if it was not completed. According to the Small Business Fair Dismissal Code.
When is a dismissal harsh, unjust or unreasonable?
The Fair Work Commission considers numerous factors when assessing whether a case meets the required criteria. This includes but not limited to the below factors:
- Was there a valid reason for the dismissal related to the employee’s capacity/conduct?
- Was this reason brought to the employee’s attention?
- Were they given an opportunity to respond to the allegation?
- Did the employer allow the employee to have a support person present in discussions relating to the dismissal?
- If not, was it unreasonable for the employer to deny the employee this right?
- Did the size of the business, or lack of a dedicated human resources department, impact on the procedures that the employer followed when dismissing the employee?
How can Cooper Green Lawyers assist?
Understanding the criteria for whether your circumstances meet the criteria only scratches the surface of process required to navigate a successful unfair dismissal claim. In conjunction with specialising in Employment law the team at Cooper Green Lawyers have built a no-win, no-fee unfair dismissal package focused on helping you get back on your feet after being dismissed.