When is dismissal harsh, unjust or unreasonable?

While the employer must give a valid reason for dismissing an employee it may still be considered unfair dismissal by the Fair Work Commission (FWC) if it can be shown that the dismissal was ‘harsh, unjust or unreasonable’. For example, a dismissal may be:

  • harsh because it is disproportionate to the employee’s misconduct or poor performance;
  • unjust because the employee was not guilty of the alleged misconduct or poor performance or an incident was not properly investigated; or
  • unreasonable because there was no evidence to support a termination.

Criteria for considering harshness

The FWC will look at all the following factors when considering whether a dismissal was harsh, unjust or unreasonable:

(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.

The terms of employment contract, the relevant award, the particular circumstances and legal position may be examined and considered before action is taken.

There are very short time limits that apply to making an unfair dismissal claim.