Unfair dismissal: The importance of a fair go all round.
The principle of ‘a fair go all round’ is central to unfair dismissal law in Australia.
Employers who wish to dismiss an employee should ensure this principle is abided by, noting that a failure to do so may result in them being exposed to an unfair dismissal claim.
A fair go all round
The Fair Work Act 2009 (Cth) (the Act) provides that the procedures and remedies available under unfair dismissal law is intended to ensure ‘a fair go all round’ for both an employer and employee.
In considering this principle, it is important that employers understand the Act provides that a person will be taken to have been unfairly dismissed if:
- the person has been dismissed; and
- the dismissal was harsh, unjust or unreasonable; and
- the dismissal was not consistent with the Small Business Fair Dismissal Code (applicable where an employer employs fewer than 15 employees); and
- the dismissal was not a case of genuine redundancy.
Before dismissing an employee, and employer should always ensure that they have considered these issues and complied with their obligations. In certain circumstances it may also be prudent for an employee to seek legal advice in relation to such issues before electing to dismiss an employee.
In any event, once a dismissal has occurred, the Act provides that employees who believe they have been unfairly dismissed can bring an application for unfair dismissal remedy against their employer.
What does harsh, unjust or unreasonable mean?
Determining whether a dismissal was harsh, unjust is central to the outcome of an unfair dismissal claim.
In general terms, these expressions have been held to mean the following:
- “Harsh”: The dismissal was harsh because it resulted in negative consequences for the employee (their personal and financial situation) which were disproportionate to the gravity of the alleged action, failing, or offence;
- “Unjust”: The dismissal was unjust because the alleged action, failing, or offence relied upon by the employer was not something that could be properly attributed to the employee; and
- “Unreasonable”: The dismissal was based on conclusions, inferences or decisions which could not reasonably be drawn on the material and information before the employer.
Employers, acting reasonably and proportionately, should always give proper consideration to the concepts in determining whether the decision to dismiss is appropriate in each circumstance.
Implications for employers
Employers should ensure that dismissal occurs in a lawful manner which is fundamentally fair, just and reasonable.
A failure to do so, may result in an employee being exposed to an unfair dismissal claim from an aggrieved former employee.
It may be prudent in for an employer to seek legal advice before taking action to dismiss an employee.
Please contact Queensland Law Practice should you require legal assistance or advice in relation to the subject matter of this article or any workplace law matter.