What Employers Should Know About Unfair Dismissal Claims


It is important for an employer to know their rights when faced with an unfair dismissal claim.

What is an unfair dismissal claim?  Unfair dismissal if defined as the dismissal of an employee from their job in a harsh, unjust or unreasonable manner.

If an employee makes an application to the Fair Work Commission, the matter will be listed for a conciliation conference shortly thereafter.  This will give an opportunity for both parties to try to resolve the matter before an independent conciliator.  An employer will also be required to file their response within 7 days after the application has been served.

There are possible defences to an unfair dismissal claims including the following:

  1. That the employee was not terminated by the employer.

The employee has voluntary resigned or abandoned his/her employment.

  1. The termination was not harsh, unjust or unreasonable.

In considering whether a termination is harsh, unjust or unreasonable, the Commissioner must take into account the following factors:

  • Is there a valid reason for the dismissal relating to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)?
  • Has the employee been notified of the reason for dismissal?
  • Does the employee have the opportunity to respond relating to his/her capacity or conduct?
  • Did the employer unreasonably refuse to allow the employee to have a support person present to assist at any discussions relating to their dismissal?
  • Has the employer provided any warnings in relation to an employee’s unsatisfactory work performance prior to dismissal?
  • Has the employer provided assistance to the employee to improve his/her work performance?
  • How the size of the employer’s enterprise would likely impact on the procedures followed in effecting the dismissal.
  • Whether the employer has a dedicated human resource management specialists or expertise that would likely impact on the procedures followed in effecting the dismissal.
  • Any other matters that the Commission considers relevant.
  1. There was a genuine redundancy within the business.

There is a genuine redundancy in the following circumstances:

  • The employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s business; AND
  • The employer has complied with any obligation imposed by an applicable modern award or enterprise agreement in relation to the redundancy.

We act on behalf of employers in the Fair Work Commission and Federal Court of Australia to obtain favourable settlement outcomes.  If you require advice regarding an unfair dismissal claim brought against your company, please contact our litigation department on (03) 9311 8511.