Understanding Unfair Dismissal

When an employee has been dismissed from their employment, they might choose to make an unfair dismissal application to the Fair Work Commission (FWC).

The FWC will determine whether the dismissal was harsh, unjust or unreasonable (and therefore unfair), by considering whether the employer had a valid reason to dismiss the employee and whether the employer followed a fair process leading up to the employee’s termination, including whether termination of employment was appropriate in the circumstances.

What is the meaning of ‘harsh, unjust or unreasonable’?

The terms harsh, unjust, and unreasonable have certain meanings in the context of dismissal and these meanings may overlap.

Harsh: Was the termination of employment an appropriate consequence compared to the employee’s actions? For example, dismissing an employee for a minor issue may be considered harsh.

Unjust: Does the dismissal lack fairness? An employee’s dismissal without proper evidence supporting the employer’s claims or without being guilty of the alleged misconduct would likely be unjust.

Unreasonable: The decision to dismiss was not based on sound reasoning or evidence. For instance, if an employer terminates an employee without any evidence or material to support the dismissal.

Recent case

The employee, Mr Goonewardena started employment with Komeyui Management Pty Ltd on 12 December 2022 and was dismissed after approximately ten months of service. The termination letter outlined various performance concerns, including issues with communication, leadership, and customer service.

Following his dismissal, Mr Goonewardena filed an application claiming that the termination was harsh, unjust, and unreasonable. He argued that the reasons provided were vague and lacked sufficient evidence to justify his dismissal.

The FWC found that the employer did not provide adequate details or evidence to support the performance concerns raised in the termination letter.

Because of this, the FWC determined that the employer had no valid reason for the termination due to the lack of specificity in the termination letter and ordered the employer to pay compensation.

Mr Goonewardena’s dismissal was found not only to be unfair but also harsh as it lacked procedural fairness; his employer did not raise or document any performance concerns with Mr Goonewardena prior to his termination.

Key take away

This case highlights the importance of providing clear and specific reasons for dismissal, particularly when performance issues are the basis.

Employers should ensure that employees are adequately informed of performance concerns and given the chance to improve.