Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner and not a case of genuine redundancy.
There needs to be a valid reason for the dismissal such as capacity to do the job or the employee's conduct.
The staff member must have been employed for the organisation for at least 6 months before they can apply for an unfair dismissal.
Case study: Ms Kaye Gooch v Proware Pty Ltd
Kaye was a bookkeeper. She told by email that her employment was dismissed because she did not produce a medical certificate.
The matter went to Fair Work Australia, who decided, that while the employer had a valid reason for dismissal, they should have given her the opportunity to provide a response before the decision to dismiss her.
This made the decision to dismiss her employment unfair. She was therefore unfairly dismissed. Her employer was ordered to pay her six weeks of pay.
Small businesses have more lenient rules for dismissal under the Small Business Fair Dismissal Code, including:
The employee must be employed for at least 12 months before they can apply for unfair dismissal.
If an employer follow the process set out in the code, the dismissal is deemed to be fair.
To work out if the Code applies to your business, the employer must have fewer than 15 employees. Count the number of employees at the time the person was dismissed including the employee and any employees dismissed at the time, casual employees who had regular and ongoing hours and employees of associated entity.
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Caroline Mense Principal Lawyer at Legal Enablers