Unfair dismissal issues for employees

The following principles lie at the heart of the Fair Work Commission’s approach to whether the termination of the employment of an employee will be held to be relevantly unfair. If it is, the Commission can order the employee’s reinstatement and/or compensation.

An employer must have a valid reason for the dismissal of an employee, although it need not be the reason given to the employee at the time of the dismissal. The reasons should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.

If the employer does not have a valid reason for dismissal, judged by the Fair Work Commission, then ordinarily the dismissal will be regarded as unfair. Furthermore, even though there might be a valid reason for a dismissal, the Fair Work Commission can nevertheless determine that it was relevantly unfair if it is in all the circumstances harsh, unjust and unreasonable.

I represent both employers and employees.