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When the dismissal of an employee was harsh, unjust and unreasonable the dismissal is considered to be unfair. The reason for termination may be valid, however can still be unfair. A valid reason for dismissal could be classified as capacity, conduct, performance or genuine redundancy.
Where the business concerned employs less than 15 employees it is considered a Small Business and the Small Business Fair Dismissal Code is applicable in such cases. Any dismissal not in accordance with the Small Business Fair Dismissal Code would be considered an unfair dismissal.
Dismissals made without a valid reason, without notice, without an opportunity to respond or procedural fairness can be considered harsh, unjust or unreasonable. The law gives the Fair Work Commission discretion to consider other relevant matters as it deems fit to determine whether a dismissal was harsh, unjust or unreasonable.
An eligible employee can lodge an application for unfair dismissal with the Australian Fair Work Commission within 21 days from dismissal.
In NSW only employees employed by a private enterprise are National System Employees and can consider lodging an application if eligible.
You may be ineligible to lodge an application for unfair dismissal from the outset if you are a Government employee, independent contractor, or a trainee employed for a specific period.
You are eligible to lodge an application if you are an employee working for six months, for an organisation where the employees exceed 15. If you are working in an organisation employing less than 15 people, you would need to work at this organisation for at least one year in order to be eligible to lodge an application for unfair dismissal.
Remedies may include compensation or reinstatement.
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