Was your dimissal ‘harsh, unjust or unreasonable’?
So what does it mean for a decision to be ‘harsh, unjust or unreasonable’? First things first, notice that is an ‘or’ not an ‘and’. That is important, because those words mean different things and you only need to establish one of them.
Section 387 of the Fair Work Act provides a checklist of items that must be looked at when considering whether a dismissal was unfair. It reads:
Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
- 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
- whether the person was notified of that reason; and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
- 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
- if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
- 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
- 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
- any other matters that the FWC considers relevant.
If you do file an unfair dismissal claim that is contested at a hearing, the Fair Work Commission must look at each of these items to determine whether your dismissal was harsh, unjust or unreasonable.
So, in order to illustrate how that goes, I’ll take you through some decisions from the Fair Work Commission. I hasten to add each case really does turn on its own facts so even if something seems similar to your situation, there may be good reason why your case could see a different outcome.
“whether there was a valid reason for the dismissal…”
In a 2018 Fair Work Commission decision ( FWC 3569), a clerical worker was found to be unfairly dismissed by a small business employer of nine (9) employees after it failed to give a reason why they were terminating the employment. While the worker received a termination letter, it made no mention of previous verbal warnings nor any reason as to why their employment was being terminated. Instead it said, ‘if we require your services in the new year, we will be in touch’.
The take home message here is that when you are terminated, make sure that your employer clearly tells you why you have been dismissed. If not, you might have a case of an unfair dismissal on your hands.
“an opportunity to respond…”
In another 2018 Fair Work Commission decision ( FWC 6666), a small business employer of two (2) employees was described as “jump[ing] the gun” when they demoted an employee without explaining why, or giving them an opportunity respond. The Commission went on to describe what the employer should have done in that situation. Essentially, they should have calmly told their employee in private the performance concerns they had and then given them a short period of time to respond to those concerns. Had the employer done so, its probable the dismissal would not have been ruled an unfair one.
Was your employer a ‘small business’?
For unfair dismissal claims, it does matter if your employer was small business. The law recognises that small businesses should be afforded leniency when it comes to unfair dismissal claims (see the Small Business Fair Dismissal Code).
If you work for an employer that employs less than 15 employees, they will be a small business. And, a small business can legally dismiss you in two types of ways:
by summary dismissal, which means that lose your job immediately because of something illegal or dishonest that you may have done; or
by an ‘other’ dismissal which has occurred from how you perform on the job.
If you have recently lost your job by way of an ‘other’ dismissal the and you are pretty sure that you haven’t been dismissed by way of a summary dismissal, then I ask you to think about the following questions that help you to know if you do fall into this ‘other’ category:
Q 1 – did your employer give you a reason for being at risk of dismissal?
Q2 – Was the reason for dismissal because of your ability to do your job or how you behaved at work?
Q3 – were you given any verbal warnings about your behaviour? And if you didn’t improve, then were at risk of being dismissed?
Q4 – did you employer give you an opportunity for you to explain your reason to their concerns?
Q5 – did your employer give you any time to try and correct these concerns?
Q6 – did your employer allow you to bring a support person to any discussions around a potential dismissal?
If you think that your employer might have missed any of the steps above when terminating you or are unsure about it, you are welcome to get in touch with our firm to see if we can help in your case.
The dismissal was “not a genuine redundancy”
If a person lost their job because of a genuine redundancy, then it is not possible to succeed in an unfair dismissal claim before the Fair Work Commission. This ‘genuine redundancy’ question was discussed in a 2019 Fair Work Commission decision (  FWC 3505) where it was confirmed that ‘…a person cannot be unfairly dismissed if the dismissal was a case of genuine redundancy.’ In that decision, it was said a genuine redundancy is one where:
the job is lost because of operational requirements, [What this means is if your business is restructuring, and the type of position you are doing wont’ be continued in the new restructure, then being made redundant will be lawful]; and
that consultation obligations have been met in accordance with an Award or Enterprise Bargaining Agreement [what this means is that your employer should talk to you or provide you with documentation around any proposed changes to the workforce and encourage you to give feedback on those proposed changes].
Should you find yourself in a position where you question whether the redundancy was ‘genuine’ according to these considerations, then you may have been unfairly dismissed. I should add that it may not be enough to simply think in those terms. It is also worth considering what is required for it to not be a case of genuine redundancy.
Not a genuine redundancy?
What is not a genuine redundancy is when reasonable re-deployment exists in the business but the employer doesn’t offer this opportunity to their employee. Another example might be if an employer offers an employee a re-deployment option but it is ‘doomed to fail’ from the beginning.
More complex questions arise if a company operates nationally or internationally. Re-deployments in those situations may involve shifting to an entirely new location. Other complex situations arise when the alternative job on offer amounts to lower pay or worse conditions.
When considering redeployment opportunities in the context of an unfair dismissal claim, it will really be assessed on a case-by-case basis. Unfortunately for both employers and employees, there is no ‘one-size fits all’.