What is an unfair dismissal?

An unfair dismissal is a termination of employment at the initiative of an employer which is harsh, unjust and unreasonable. What are the legal elements of that?

“Was the dismissal harsh, unjust or unreasonable?

[2023] FWC 1901

6

[25] Section 387 of the FW Act provides that, in considering whether it is satisfied that a

dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s

capacity or conduct (including its effect on the safety and welfare of other employees);

and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to

the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support

person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether

the person had been warned about that unsatisfactory performance before the dismissal;

and

(f) the degree to which the size of the employer’s enterprise would be likely to

impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management

specialists or expertise in the enterprise would be likely to impact on the procedures

followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[26] I am required to consider each of these matters, to the extent they are relevant to the

factual circumstances before me.22 I set out my consideration of each below.”

 

Wood v Tricon Security Pty. Limited [2023] FWC 1901 delivered 1 August 2023 per Roberts DP