Defending an Unfair Dismissal Claim
Unfair dismissal claims are dealt with by the Fair Work Commission under the provisions of the Fair Work Act 2009 (Cth).
If an employee has brought an unfair dismissal claim against you or you wish to discuss options on how to dismiss an employee in compliance with the Fair Work Act, please contact one of our employment lawyers today to discuss your options moving forward.
If you have dismissed an employee, they have 21 days from the date of dismissal within which to bring their claim. Outside of the 21 day time limit, the claimant must satisfy the Fair Work Commission that there are exceptional circumstances that provide a reason for the delay. For example, whether the claimant became aware of the dismissal after its effect, any actions taken by the claimant to dispute the dismissal, prejudice to you by allowing the claim outside the time limit, and the merits of the case.
The Fair Work Commission will deem a dismissal as “unfair” if it was “harsh, unjust or unreasonable”. A dismissal will not be deemed harsh if there was a valid reason for the dismissal in respect of the employee’s capacity or conduct. The Fair Work Commission will consider whether you gave the employee warning of their unsatisfactory performance, an opportunity to respond to the allegations of poor performance, and if access to a support person was given throughout discussions regarding the dismissal.
Under the Fair Work Act you are protected from an employee bringing an unfair dismissal claim in the following circumstances:
- If the dismissal was:
(a) a genuine redundancy; or
(b)the end of a fixed term contract; or
(c) a trainee whose employment ended; or
(d) the claimant was demoted and there is no significant reduction in their duties or remuneration.
- If you are a small business with less than 15 employees, and the claimant has been employed for less than 12 months.
- If you are a medium or large business with 15 employees or more, and the claimant has been employed for less than 6 months.
- If the claimant is not covered by a modern award or does not have an enterprise agreement that applies to them in relation to their employment or the sum of the annual rate of earnings is more than the high income threshold.
- Casual employees are not entitled to make a claim if they were employed for less than the requisite minimum period (detailed at points above), were not engaged on a regular basis or it was unreasonable for them to expect continued employment.
Hillhouse Burrough McKeown has extensive experience with defending unfair dismissal claims and can advise you regarding the best course of action with any particular claim.