When a employer terminates an employee there are strict guidelines that must be adhered. Any old excuse to” get rid ” of an employee is not acceptable by law.
This also includes any employee who has suffered a workplace injury and is now doing modified work. Finding the “new job”, to show the employee “the door”, is not an ideal solution according to Fair Work Australia. Employers have a long term responsibility to the injured worker.
Harsh, unjust or unreasonable and unfair dismissals
Author Paul Munro 10 Dec 2012
‘Harsh, unjust or unreasonable’ is the phrase used in Fair Work legislation as a means of assessing whether a dismissal amounts to an unfair dismissal. Here are some guidelines on how a typical unfair dismissal claim is assessed.
A typical situation is the one outlined here:
‘Our company wishes to provide internal training for our supervisory staff with respect to our Code of Conduct and disciplinary procedures.
We also want to provide them with the principles that are applied by Fair Work Australia (FWA) when considering whether a dismissal was unfair.
What type of matters are taken into account by FWA when determining the fairness, or otherwise, of a dismissal?’
Relevant matters in deciding fairness
Some guidance as to whether a dismissal was harsh, unjust or unreasonable is provided in the legislation; that is, in considering the fairness of an employee’s dismissal, FWA will firstly take into account the matters set out in s387 of the Fair Work Act 2009:
- whether there was a valid reason for termination of employment; and
- whether the employee was notified of that reason; and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
- any unreasonable refusal by the employer to allow the employee to have a support person present to assist in discussions relating to the dismissal; and
- whether the employee had received warnings — if the dismissal was due to unsatisfactory performance; and
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- the degree to which the absence of a dedicated human resources management specialist in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters FWA considers relevant.
Was the termination was harsh, unjust or unreasonable?
After fairness has been determined, the s385 of the Act requires FWA to also consider whether the termination was harsh, unjust or unreasonable. In many cases the concepts will overlap.
Weighing up all the factors
It may be that a termination was:
- harsh, but not unjust or unreasonable
- unjust but not harsh or unreasonable
- unreasonable but not harsh or unjust.
A dismissal may be:
- harsh because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the alleged offence
- unjust because the employee was not guilty of the alleged offence on which the employer acted unreasonable because it was decided on inferences that would not reasonably have been drawn from the material before the employer.
FWA must consider all the above factors in totality. FWA weighs up all the factors in coming to a decision about whether the dismissal was harsh, unjust or unreasonable and no factor alone is necessarily determinative.