Harsh, unjust or unreasonable and unfair dismissals


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.

Case study

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.



2 Responses to “Harsh, unjust or unreasonable and unfair dismissals”

  1. One of the thing that is a constant in our present system is the “loophole”. It is a surety that no matter what workplace legislation is in place there is the “loophole” Our work place legislations are taking on the appearance of sponges with all the loopholes that have been factored into them. Just shows how important is the need for independent review policies before legislations are passed to weed out those cleverly placed “loopholes”. Not allowing the pushing of policies through parliament before all have been approved against damaging “loopholes” is one example. I’m not a legal person but it appears that the game is to play on ignorance.

  2. Unjust, unreasonable, harsh, in my opinion those words just create a loophole in the system and lead to intentional misleading interpretations and use by the Employers. Sacked Employees are confused by those terms and often they don’t know which application is right for the specific situation as well as FWA DO NOT offer advices so here we are again! Workplace is ruled by Laws so it’s “illegal” to sack an Employee by breaking the rules, end of the issue, we don’t need to use loophole words!

    Also it’s unjust, unreasonable and harsh that sacked Employees have to pay FWA $64.20 fees even after an Employer is found GUILTY!