When Is Dismissal Unfair?

Understanding whether a dismissal is unfair is essential for protecting your workplace rights. Dismissal typically occurs when an employer terminates an employee’s employment due to performance, behaviour, or redundancy. However, a dismissal may also occur in less direct ways, such as a forced resignation, known as constructive dismissal, or through demotion where there is a significant reduction in pay or responsibilities.

At Bentham Sydney Employment Lawyers, we have over 20 years of combined experience defending employee rights, with significant outcomes achieved for those unfairly dismissed. Employers sometimes use simplistic or vague reasons for termination, but a forensic examination is often required to uncover the true reasons. We take a thorough approach, conducting detailed interviews and clearly articulating, both factually and legally, why your dismissal may have been unfair.

What Makes a Dismissal Unfair?

A dismissal may be deemed unfair if it is harsh, unjust, or unreasonable. Common factors that the Fair Work Commission will consider include:

1. Was there a valid reason for the dismissal related to performance or conduct?
2. Were you given an opportunity to respond to allegations or performance issues?
3. Did the employer follow proper procedures, including issuing warnings?
4. Does the dismissal comply with the Small Business Fair Dismissal Code?

In cases of alleged poor performance, employers are generally required to provide both verbal and written feedback, along with reasonable time to improve. Failure to do so could render the dismissal unfair. If you have not been given sufficient warnings, Bentham Sydney Employment Lawyers can assist you in presenting this as part of your unfair dismissal claim.

Eligibility to Lodge an Unfair Dismissal Claim

Not all employees can lodge an unfair dismissal claim. Under the Fair Work Act 2009 (Cth), you may be eligible if:

1. You are employed under a modern award or enterprise agreement;
2. You earn below the high-income threshold (currently $175,000); and
3. You have been employed for at least six months (or one year for small businesses).

If these criteria apply to you, it is important to act swiftly as strict time limits exist for lodging a claim. Bentham Sydney Employment Lawyers is here to guide you through this process and ensure your rights are safeguarded.

Sham Redundancy: Your Legal Rights

A redundancy must be genuine under Australian law. This means the position no longer exists, and thorough consultation has occurred with affected employees. However, if the employer claims redundancy when your role still exists, or if you could have been redeployed to another position, this could be considered a sham redundancy.

If you suspect your redundancy is not genuine, it is crucial to seek legal advice. Bentham Sydney Employment Lawyers has extensive experience in identifying sham redundancies and helping employees lodge unfair dismissal claims when their rights have been violated.

What Can You Expect From Bentham Sydney Employment Lawyers?

We pride ourselves on providing expert legal advice, having defended employee rights for over two decades. Our approach involves:

1. Conducting detailed interviews to gather facts;
2. Preparing robust written submissions to the Fair Work Commission;
3. Advocating for your rights and articulating why your dismissal was unfair under the law.

Bentham Sydney Employment Lawyers will work tirelessly to ensure you receive the justice you deserve. If you believe your dismissal was unfair, contact us today for a confidential consultation. Our team will assess your case and guide you through every step of the process, ensuring your workplace rights are protected.

This article provides general information. For specific advice, please contact Bentham Sydney Employment Lawyers.