Unfair Dismissal

Dismissal

‘Dismissal’ means the employer telling the employee they no longer have a job.

For example, the employer may:

• fire an employee with or without warning for their behaviour

• fire an employee because they are not performing their job to the level required

• tell the employee their position is redundant now or on a future date.

In some cases, if the employer's behaviour forces an employee to resign (called constructive dismissal), that might also be a dismissal.

If your are a contractor or have been 'mobilised' by a labour hire company, and you are told you no longer are working on that site, this is NOT dismissal, as you still are engaged by the labour hire company who will likely redeploy you. However, being removed from site as a contractor, in some cases can still qualify as an 'adverse action' under the Fair Work Act or 'detriment' under the Coal Mining Safety and Health Act 1999 (Qld). 

Unfair

A dismissal is not always unfair. In some situations, it is fair to end an employee's employment.

When an employer dismisses an employee, the law says that they:

• should not dismiss an employee if it is harsh, unjust or unreasonable

• should not make an employee redundant if it is not a genuine redundancy

• should follow the Small Business Fair Dismissal Code (if they are a small business).

The legal definition is in section 385 of the Fair Work Act 2009.

Examples of ‘harsh’ dismissal

• the dismissal is an extreme response to the situation

• the dismissal has a very big ('disproportionate') impact on the employee’s economic and personal situation.

Example of ‘unjust’ dismissal

• the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.

Example of ‘unreasonable’ dismissal

• the evidence does not support the decision to dismiss the employee.

Next steps

If you are an employee and you think your dismissal meets the definition of ‘unfair’, use the checklist. This helps you understand if you meet the criteria and are ready to apply for unfair dismissal.