Wk 3 – What is? Unfair Dismissal

Hi everyone, I’m Peta Cussell from Project Ops and this week I am going to talk about ‘Unfair Dismissal’. When the Fair Work Act came in in 2009 so did tighter Unfair Dismissal Laws and the introduction of fines.

Unfair dismissal is when an employee is dismissed from their job in a ‘harsh, unjust or unreasonable’ manner. The Fair Work Commission (FWC) decides on cases of unfair dismissal.

Here‘s a few quick facts about unfair dismissal:

  • Employee applications must be within 21 days of the dismissal taking effect.
  • Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
  • Employees working for a small business (less than 15 employees) have to be employed for at least 12 months before they can apply.
  • Small businesses have different rules for dismissal. 
  • The Small Business Fair Dismissal Code provides protection against unfair dismissal claims, where an employer follows the Code. 

Immediate Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of WHS procedures. 

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or performance. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem.

Real Life Case - Why an employer had to pay $25K to employee dismissed for viewing porn!
You would think it was a straightforward case - an employer dismissing an employee for accessing questionable images on his work computer, after he had been warned not to do so.

But in this recent case the FWC ruled the man’s dismissal was unfair because the employer had failed to follow the correct procedure when dismissing the employee.

The employee had been given a formal warning over accessing objectionable websites at work. A further complaint was made and so the employer investigated and found that the employee had breached its Policy and immediately dismissed him.

The employee took the case to the FWC and stated that he hadn’t deliberately viewed the sites but instead a computer virus was responsible. The FWC did not accept this reason and agreed with the employer that it had a valid reason for dismissing the man. However, it found the dismissal was unfair because he was never properly notified of the reason for which he was to be dismissed and was not given any real opportunity to respond to the reason.

The outcome - the Commissioner ordered the employer to pay $25,341 in compensation to the man.

(See Roelofs v Auto Classic (WA) Pty Ltd [2016] FWC 4954 (25 July 2016))


Why Project Ops

This case just shows how important it is to follow correct procedures and not rush hastily into any action following an employee issue. If this employer had called Project Ops, we could have advised them of the appropriate procedure to follow, we could have provided suitable letters and scripts to use when addressing this case and a different outcome could have occurred.

With Project Ops, we ensure compliance and take all the heavy-lifting out of all HR and Staffing matters. Small business owners have enough to worry about... leave HR to the experts.

If your business is yet to establish HR Policies and Procedures and you don’t know where to start or you need advice on a particular staffing issues, please get in touch!

Project Ops are one of Australia’s leading outsourcing specialists, providing some of Australia’s best talent to businesses of all sizes on short or long-term contracts. Specialising in Human Resources (HR), Recruitment, Business Operations, Change Management, Project Management and Event Management.