Unfair dismissal occurs when an employee’s dismissal is considered ‘harsh, unjust
or unreasonable’. However, not every employee is able to bring a claim for an unfair
dismissal as the legislation provides for a number of exclusions that apply as to
whether or not one can bring an application. Depending on the length of service,
whether you fall under the small business exemption, your rate of pay, whether you’re
covered by a modern award, whether you are subject to an enterprise agreement are
just some of the identifying factors to determine whether or not you can bring a
claim.
Factors which may be taken into account when determining whether an employee’s dismissal
was harsh, unjust or unreasonable include:
- Whether there was a valid reason for the termination;
- Whether the employee was notified of the reason;
- Whether the employee was provided with an opportunity to respond;
- Whether the employee had been warned about unsatisfactory performance;
- The size of the employer’s business and/or the absence of a human resources manager and whether this impacted on the termination procedures;
- Any other matters considered relevant.
It is best that you seek advice on how these factors apply to you so that you can
determine whether in fact you have been dismissed unfairly.
Importantly, an unfair dismissal application has to be made within 14 days. This
time can be extended in exceptional circumstance therefore it is best that you do
not waste any time and seek legal advice as soon as possible.