What Counts as Unfair Dismissal?

The number of unfair dismissals in Australia is on the rise, with more employees fearing for their job security. Though an employer can dismiss you for a number of valid reasons, it’s unfair when the dismissal is harsh, unreasonable, or unjustified. Despite guidelines set by the Fair Work Commission, there are concerns that employers aren’t giving workers an appropriate notice period. To help you know whether a dismissal is unfair, we’ve gathered information on what counts as an unfair dismissal.

The Laws Surrounding Unfair Dismissal in Adelaide

The 2009 Fair Work Act is the legal framework that applies to unfair dismissals all over Australia, including Adelaide.

You’re eligible to file a claim for unfair dismissal with the Fair Work Commission if:

• You’ve worked for the company for at least six months. In the case of a smaller business that has fewer than 15 employees, this period increases to 12 months.
• You’re covered under an enterprise agreement, award, or currently make less than the high-income threshold.

Valid Reasons for Dismissal

It’s worth looking at what makes a dismissal valid or invalid, based on the reason provided.

Here are a few examples of valid reasons for dismissing an employee:

• Consistently poor performance that’s backed up by documented feedback.
• History of misconduct, including serious breaches like harassment or theft
• Failing to meet performance expectations set by the company
• Being unable to fulfill job requirements due to mental incapacity
• When the employee’s role is no longer needed because of operational changes

For all of these to be valid reasons, employers have to meet legal requirements before terminating an employee. For instance, they have to give documented evidence of prior warnings for performance related issues, or conduct an investigation in case of misconduct allegations. In the case of downsizing, employers must prove that the redundancy is genuine. They should also offer consultation services, alternative roles if available, and redundancy entitlements.

Invalid Reasons for Dismissal

At the same time, there are various invalid reasons for dismissing an employee. Termination is invalid if it violates workplace laws, breaches employment contracts, or is based on discriminatory motives.

Here are some invalid reasons for dismissing an employee:

Exercising Workplace Rights

This is when an employer terminates you for asserting your rights at work, like filing a complaint about unsafe working conditions or requesting personal leave. Another example is when employees are terminated for participating in industrial actions protected under the Fair Work Act. Terminating an employee for this reason is referred to as an adverse action and results in serious penalties for the employer.

Discrimination

This refers to terminating employment based on characteristics that are protected under anti-discrimination laws. For instance, being dismissed because of your race, age, sexual orientation, religion, or disability. These dismissals are unfair and unlawful under the Fair Work Act.

Temporary Absence Due to Illness

Dismissing an employee who can’t work temporarily because of illness or injury counts as unfair dismissal. A good example of this is when companies terminate employment while a staff member is on sick leave – despite providing valid medical documentation.

If you’re in a similar position, know that employers are required to accommodate temporary absences according to National Employment Standards. They can only terminate employment if the absence exceeds three months or if the employee can’t return to work.

Retaliation

Retaliating against an employee in response to a complaint or protected action is an unfair dismissal. It includes examples like terminating employment for reporting harassment or for whistleblowing. Retaliation against employees for protected actions is prohibited under workplace laws.

Without Giving a Reasonable Notice Period

When employers don’t follow due process before terminating employment, it’s an unfair dismissal. This includes dismissing an employee without giving a fair warning or providing evidence of underperformance or misconduct.

A common example includes immediate dismissal without a formal warning, feedback, or an investigation. If you see this happening, keep in mind that employers must adhere to proper dismissal procedures, like giving written notice and an opportunity for the employee to respond.

What To Do When You’ve Been Unfairly Dismissed

If you’ve been unfairly dismissed, it’s worth speaking to a workplace rights lawyer in Adelaide to assist you. An experienced legal team will go over the details of your cae and confirm if the dismissal qualified as unfair under the Fair Work Act. If it does, they can assist you with submitting a claim within 21 days of the dismissal. The Fair Work Commission will facilitate a resolution between you and your employer, and you may receive remedies like reinstatement or compensation.