What is unfair dismissal?
Unfair dismissal occurs when an employee is dismissed from his or her employment in a harsh, unjust or unreasonable manner.
What would constitute an unfair dismissal in Western Australia?
A dismissal will be seen to be unfair if it is deemed harsh, unjust or unreasonable in circumstances where there is no valid reason for the dismissal. A valid reason for dismissal may relate to an employee’s conduct, capacity or performance.
The reason must be sound and well-founded, not fickle, fanciful or prejudiced. Examples of dismissals that may be deemed unfair include If your employer suddenly fires you and does not tell you the reason for the dismissal or where you were fired for a reason that had nothing to do with your performance or conduct on the job and was not a genuine redundancy.
What should I do if my employment has been unfairly terminated?
To make an unfair dismissal complaint to the Fair Work Commission, you must have: (1) worked for your employer for at least 6 months (or 12 months if they are a small business (ie have fewer than 15 employees); earned less than the high-income threshold (currently $138,900 a year); or be covered by a modern award or an enterprise agreement. Your application must be lodged within 21 days of the day you were fired and time is of the essence.
Can I terminate an employee for poor performance?
Under unfair dismissal laws in Australia, an employer cannot dismiss an employee unless they have a valid reason connected with the employee’s conduct, capacity or because of a genuine redundancy.
In addition, if the dismissal is related to conduct, capacity or poor performance, it may still be unfair if the employee is not notified of the reason for their dismissal, is not given an adequate opportunity to respond to those reasons, and is not provided with a warning in certain circumstances, not allowed a support person to assist them in discussions about the meeting or if the dismissal was otherwise procedurally unfair.