Unfair vs unlawful dismissal; judge explains

A judge explains the difference between unlawful and unfair dismissal

“The claim is a General Protections claim under Part 3-1 of the FWA. It is not an Unfair Dismissal claim under Part 3-2 of the FWA. The focus, therefore, must be and indeed can only be, the reason or reasons why the Respondent acted in terminating the Applicant’s employment. Whether the termination was fair or reasonable is not relevant except insofar as this might bear evidentially on a finding as to whether the true reasons for the dismissal was that stated by the Respondent: Porges & Anor v Broken Hill Musician’s Club Ltd & Anor [2016] FCCA 95 (23February 2016) Judge Driver at [4] and [33]. Even if it were the case that the termination was unfair (and the Court makes no finding in this regard), that would not establish a General Protections claim. The Applicant was very well represented in this case (as was the Respondent). The Court can only assume that careful consideration was given to the choice of claim and jurisdiction.”

Laviano v Fair Work Ombudsman (2017) FCCA per Altobelli J