1.Eligibility to make an unfair dismissal claim.

The Fair Work Act 2009 sets out the legal framework for the resolution of unfair dismissal claims. Under the Act, an employee can make a claim for unfair dismissal if they have been dismissed and they believe that the dismissal was harsh, unjust, or unreasonable.

To be eligible to make a claim for unfair dismissal, an employee must have completed the minimum employment period (which is generally 6 months for small businesses and 12 months for other businesses).

2. What the Commission takes into consideration when deciding if a dismissal was unfair

In considering a claim for unfair dismissal, the Commission will consider a range of factors, including the reason for the dismissal, the employee's length of service, the employee's conduct, the procedures followed by the employer, and the impact of the dismissal on the employee. If the Commission finds that the dismissal was harsh, unjust or unreasonable , it can order the employee is reinstated to their position or is awarded compensation for the loss of income and damage to their reputation that they have suffered as a result of the dismissal.

A decision does not have to be harsh, unjust and unreasonable, it only has to be one of the three to be considered “unfair”.

Harsh - A decision to terminate could be considered “harsh” because of the consequences for the employee of being dismissed, for example if the employee was to suffer a significantly adverse economic or personal consequence as a result of the dismissal. A decision to terminate may also be considered harsh if the decision to terminate was considered to be disproportionate to the misconduct.

Unjust - An example of an “unjust” dismissal would be if the evidence showed that the employee was not guilty of the conduct they were accused of.

Unreasonable - An example of an “unreasonable” dismissal would be that the evidence used in the investigation was insufficient to substantiate a finding on the balance of probabilities and did not support the decision to terminate.

3. A procedurally unfair investigation can lead to a successful unfair dismissal claim

Procedural fairness, also known as natural justice, is the principle that individuals are entitled to a fair and unbiased process when they are being investigated or disciplined in the workplace. This includes being given the opportunity to respond to any allegations or issues raised, being provided with a clear explanation for the investigation or disciplinary action, and being given a fair opportunity to challenge the decision.

Employers have a legal obligation to follow fair and proper process when conducting workplace investigations or disciplining employees. This includes providing employees with adequate notice of the investigation or disciplinary action, giving them an opportunity to respond to any allegations or issues raised, and considering their responses before making a decision.

If an employee believes that they have been subjected to a procedurally unfair investigation or disciplinary process, they may be able to make a claim for unfair dismissal to the Fair Work Commission. It is important for employers to ensure that they follow fair and proper process when conducting workplace investigations or disciplining employees in order to avoid potential claims of unfair dismissal.

If you would like help with a workplace investigation please contact us.