Unfair Dismissal - What has changed?

With the advent of new flexible work options and the rise of social media, unfair dismissal provisions, as contained in the Fair Work Act 2009, are becoming more and more difficult to navigate.

What is Unfair Dismissal?

Unfair dismissal, as defined in Part 3-2 of the Fair Work Act 2009, is defined as being if the FWC is satisfied that:

• 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; and

• the dismissal was not a case of genuine redundancy.

Recently, there have been many challenges to unfair dismissal laws, as reported in an article on Smart Company.com.au.

“It’s an interesting area just because of the variability of the individuals being employed and the reasons for certain actions taking place,” a partner at TressCox lawyers says.

“The courts and commissioners are also quite careful to assess cases on their individual merit, so you might find that in two cases with similar circumstances, they might have different outcomes.”

Types of Unfair Dismissal Examined

• Late to work, instant dismissal - In Ceccarelli v Red Pearl Couture, employee of a wedding gown shop was fired by her employer, in part, for turning up to work late five separate times - the Fair Work Commission deemed that instant dismissal was the issue and warnings should have been issued instead.

• Social Media Use - In the Linfox Case, an employee was discovered to have made disparaging comments against two managers on Facebook. Fair Work Australia granted the unfair dismissal application because the employee argued he didn’t know how public the comments were, and also pointed out his page had the highest level of privacy settings. One of the major criticisms was that the business didn’t have a current social media policy.

• Lying employees or employers - Have it in writing - In Holland v Omega Plumbing, the employee claimed their employee had forced them to write a resignation letter however the employer claimed a resignation had been accepted verbally.

• Documenting Discipline - In Read v Gordon Childcare Centre, a worker was fired after leaving a child unattended. Her workplace, a childcare centre, said this was in breach of the workplace code, however there were no records showing previous discpline had been attempted.

• Redundancy vs Dismissal - In Thomas v InfoTrak, a business tried to pass off a dismissal as a redundancy however there was no record of consultation with the employee about the redundancy.

With unfair dismissal laws becoming more and more complex with individualised situations occurring almost daily, these are only a small selection of instances where businesses and small businesses need to ensure their compliance with the current legislation.

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