Unfair dismissal generally occurs where a termination at the initiative of the Employer has been harsh, unjust or unreasonable. In determining if this has been the case, the Australian Industrial Relations Commission (AIRC) must have regard to a number of factors including:
- whether there was a valid reason for the termination;
- whether the Employee was notified of that reason and given an opportunity to respond;
- if the termination related to unsatisfactory performance by the Employee, whether the Employee had previously been warned about that unsatisfactory performance;
- the degree to which the size of the Employer’s business, or the absence of dedicated human resource management specialists, may have had an impact on the termination procedures;
A claim in the AIRC for unfair dismissal must be made within 21 days of the termination coming into effect. However, there are limits upon whom may make an application for unfair dismissal.
Once a claim is lodged, the Employer will be informed of the claim by the AIRC and must respond within 7 days. Employers may also apply to dismiss the application for want of jurisdiction or because the application as frivolous, vexatious or lacking in substance.
The matter will then be listed for a Conciliation Conference where an attempt will be made to settle the matter by negotiation and agreement. If the matter does not settle at the Conciliation Conference, the Employee may then elect to proceed with the matter to a final hearing.