Unfair dismissal is when an employee is dismissed from their job by their employer in one of the following ways;
- Harsh – dismissing the employee was too severe a consequence for what they did;
- Unjust – the dismissal was based on act which is not factually correct; or
- Unreasonable manner – An average/ reasonable person would consider the dismissal as making no sense.
If the employee worked for a small business, then the employee may consider an employee has been unfairly dismissed if the dismissal was not in accordance with the Small Business Fair Dismissal Code.
An employee in NSW must make an application with the Fair-Trade Work Commission for Unfair dismissal within twenty-one days of the dismissal of the employee. The employee could also along with the application enclose letters and emails supporting his application.
Pursuant to an application being lodged, it will be forwarded on to the employer. The employer within seven days of receipt of the application must respond by filing their comments in response.
Within few weeks of the response being filed, a Conciliation Conference by telephone will be held by the Fair Work Commission to assist the parties to negotiate a settlement. The majority of Unfair Dismissal claims settle at a Conciliation Conference.
If a case does not settle through a Conciliation Conference, then a hearing date will be listed and both parties will have to serve documentation/ statements supporting their contention.
At the hearing, the respective legal representatives for the employer and employee present their arguments and supporting evidence to the Commissioner.
The employers when they receive a claim, should firstly consider whether any of the threshold criteria for an Unfair Dismissal claim have been breached. The list is not comprehensive, and we highly suggest that you seek legal advice prior to responding to an Unfair Dismissal claim as there may be legal contentions that are not obvious on initial assessment of the Application.
If you are interested in reading more about Unfair Dismissal laws, click here to read more.
If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.