Template for unfair dismissal case

What follows is an extract from a decision of the Fair Work Commission, which I have edited, which identifies the various legal issues which are nearly always analyzed by the Commission when determining an unfair dismissal case. The template if I can call it that is a useful tool. I should add that the list is not exhaustive.

Application for an unfair dismissal remedy.

Directions.

Permission to be represented

Evidence

Is (the applicant) protected from unfair dismissal?

Was (the applicant) unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

  1. the person has been dismissed;
  2. the dismissal was harsh, unjust or unreasonable;
  3. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
  4. the dismissal was not a case of genuine redundancy.

Was (the applicant) dismissed?

Was (the applicant’s) dismissal a case of genuine redundancy?

Was (the applicant’s) dismissal consistent with the Small Business Fair Dismissal Code?

Was the Application made within the period required?

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to (the applicant’s) capacity or conduct?

Was the applicant notified of the valid reason?

Was the applicant given an opportunity to respond to any valid reason related to his capacity or conduct?

Did (the employer) unreasonably refuse to allow (the applicant) to have a support person present to assist at discussions relating to the dismissal?

Was (the applicant) warned about unsatisfactory performance before the dismissal?

To what degree would the size of (the employer’s) enterprise be likely to impact on the procedures followed in effecting the dismissal?

To what degree would the absence of dedicated human resource management specialists or expertise in (the employer’s) enterprise be likely to impact on the procedures followed in effecting the dismissal?

What other matters are relevant?

Conclusion