UNFAIR DISMISSAL OR NOT?

In the trauma of losing your job, it is easy to leap to the conclusion that you have been unfairly dismissed, however, at this highly emotional time, you must be careful to decide whether your termination was lawful, or whether you have a case of unfair dismissal. What distinguishes the two situations is whether the termination is deemed to be too harsh, unjust or unreasonable.

To determine whether you may have a case for unfair dismissal, you must consider a number of key factors and here is where the advice and guidance of an experience workplace lawyer can be most valuable and instructive.

First and foremost the validity of your termination should be realistically considered. Did your employer in fact have a valid reason for your dismissal? While you may believe your termination to be unfair, your employer may have validly terminated your employment in circumstances where you have:

  • Breached a law;
  • Breached the company’s policies, practice manual or codes of practice;
  • Received prior (or written) warning as to your behaviour or actions and continued to perpetrate the offending behaviour/action (I.e. performance management); and
  • Placed your co-workers in dangerous situations.

This is by no means an exhaustive list of valid grounds upon which to terminate, but provides an indication of circumstances in which you may have been validly terminated. If your termination was not based upon circumstances such as those above, then you should look to the 3 point test of unfair dismissal:

Test 1 – Was the dismissal harsh?

A punishment or penalty in the workplace should befit the offence or conduct. The dismissal of one’s employment should be appropriate to the circumstances. An employer cannot simply dismiss you over a difference of opinion or personality. Therefore, dismissal may be considered ‘harsh’ where the severity of the penalty (i.e. termination) outweighs the grounds upon which it was given. Importantly where you are terminated for a minor offence or on the basis of your performance without prior warning or discussion of your performance, it may be a solid basis upon which to assert your dismissal was harsh.

Test 2 – Was the dismissal unjust? 

A dismissal could be considered ‘unjust’ where the termination of an individual’s employment is done in circumstances where there is a lack of or minimal evidence as to the alleged conduct or action. The classic here is the he said/she said situation. Where an incident occurs and your employer opts to simply terminate you without proper investigation it may be reasonable to allege unfair dismissal.

Test 3 – Was the dismissal unreasonable?  

Similar to that above, a dismissal may be unreasonable where the dismissal is founded upon biased evidence, a lack of evidence or any other means upon which there was a suitable alternative to termination. This may even be open to you where you have purportedly been dismissed for reasons of serious misconduct.

Importantly, where you are made redundant and a suitable alternative job exists within your employer’s business but was not offered to you, this may constitute unfair dismissal.

Each case of unfair dismissal is assessed upon its own merits. In 2016 over 30,000 cases for unfair dismissal were lodged with the Fair Work Commission and of these cases approximately 17,000 settled at a conference or mediation. Remedies for unfair dismissal can greatly vary and range from reinstatement to monetary compensation.

OK, I think I’ve been unfairly dismissed?

If on reading the above you feel that you have been terminated from your employment for reasons that are harsh, unjust or unreasonable, you may be able to lodge an application for unfair dismissal.

You must lodge your Application with the Commission within 21 days of your dismissal and meet the prerequisite thresholds. These include:

  • You must have worked for your employer for a certain period of time (6 – 12 months dependent on the type of employment you had); and
  • Have earned less than the high income threshold (currently 138,900 per year).

It is advisable that you contact your lawyer before lodging an Application for Unfair Dismissal. Your lawyer will likely be able to assess the merits of your case and advise you on the most appropriate remedy.

The Commercial Litigation team at Stephens & Tozer Solicitors have proven experience in the area of employment law and unfair dismissal and have a history of success in obtaining suitable remedies for client’s who have been unfairly dismissed.

The friendly team headed by Mr Harry Jordaan would be happy to discuss your potential unfair dismissal claim or employment related matter.


Kate Witt is an experienced paralegal in the Commercial Litigation team at Stephens & Tozer. Working closely with Mr Harry Jordaan, Kate has astute knowledge and working experience in a vast range of commercial litigation matters including claims before the Fair Work Commission. Should you have a query relating to FWC claims please contact our team at Stephens & Tozer.

22 November 2017

Category: All / Commercial / Employment Law

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