LawTalk Blog

Unfair dimissal - where do you stand?

unfair dismissal and employment law

Firstly, it's important to remind employees that all warnings from your employer should be taken seriously. If your job is not done properly there is a possibility that you can be dismissed and your employment contract can be terminated.

That said, you should be given a warning before any dismissal (termination of employment) except in the case of a serious misconduct. There are some instances where you may be instantly sacked or dismissed without notice if there is a serious misconduct and you have:

  1. Refused to follow lawful  and reasonable directions from your employer or person that is in charge;
  2. Acted dishonestly for example lied to your employer;
  3. Exercised poor conduct; behaved so badly that instant termination of employment is justified, for example stealing or fighting.

Poor work performance, misconduct (such as fraud, assault), being intoxicated and dangerous behaviour are also considered fair reasons for termination of employment. 

It's important to note that "three written warnings" or "three warnings" are not necessarily required. Only one warning may suffice and then a subsequent repeat of the action(s) could result in dismissal. However, you should still be given a fair hearing about the circumstances surrounding any incidents and procedural fairness must be provided. "Procedural fairness" is about:

  • ensuring that the process by which the employment was terminated was fair and applied in a consistent manner;
  • the person making the decision acted on the evidence, having considered mitigating factors and your response before making a decision."\

If you are a casual employee, your job may be terminated at one hour's notice only.

Termination without a warning or a fair chance to improve performance and when there is no valid reason for the dismissal may open the opportunity for an unfair dismissal claim. Unfair dismissal can occur if the employer makes a position redundant, retrenches you and for the same duties shortly after hires a new employee for same job.

An unfair dismissal also occurs when the dismissal is harsh, unjust or unreasonable, not a genuine redundancy, and the dismissal was not consistent with the Small Business Fair Dismissal Code where the employee was employed by a small business as per section 388 of the Fair Work Act 2009.

If you are dismissed in the first six months during a qualifying or probation period of your employment or the first 12 months of employment with a small business employer you are not able to access unfair dismissal laws.

Particularly, a small business employer is an employer who employs less than 15 employees that includes casuals employed on a regular and systematic basis, employees of associated entities and the employees(s) being dismissed.

Discrimination in the workplace

It is illegal to be discriminated against or dismissed on the basis of race, sex, age, physical or mental disability, sexual preference, marital status, pregnancy, family or carer's responsibilities, religion, political opinion, national extraction or social origin, or for filing a complaint against your employer for breaching a law.

Overall you can be unfairly dismissed if the Fair Work Commission finds that you were dismissed and that the dismissal was harsh, unjust or unreasonable, and that the dismissal was not a case of genuine redundancy. If you find your circumstances match this description, you should seek experienced legal advice immediately as strict time frames apply to unfair dismissal applications. From 1 January 2013 all employees have a maximum of 21 days from the date of dismissal to make an unfair dismissal claim.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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