Termination and Unfair Dismissal

The Fair Work Act 2009 (Cth) states that a “harsh, unjust or unreasonable” termination based on certain factors would be deemed as unfair dismissal.

Some examples of situations where a termination would be deemed to be an unfair dismissal would be:

• Being forced to resign due to the conduct of the employer i.e. aggression and threats;
• Being dismissed for poor performance without the employee having received warnings and/or performance feedback prior to the dismissal;
• Being dismissed due to an illness or injury which the employee was still recovering from; and
• Being dismissed due to redundancy but the position was then given to a new employee.

There are several other factors which can come under fair dismissal and it is vital to consult with a lawyer and seek legal advice to avoid being in a situation which may incur large legal costs.

Most employees will be able to claim for Unfair Dismissal, however, there are certain exceptions for employees which makes them ineligible:

• The employee worked for less than 6 months with the employer;
• The employee was a casual / temporary employee; and
• The employee was under probation when the dismissal occurred.

There are several steps which an employer can take to minimise the likelihood of an unfair dismissal case from being successful and/or even being filed against in the first place.

An employer must ensure to stay on top of all State and Commonwealth legislation regarding termination to ensure a legal termination. Examples of this would be a manager taking upon themselves to contact a lawyer for legal advice or read up on legislation such as the Small Business Fair Dismissal Code which states the checklist needed to carry out a lawful termination for a small business.