What is unfair 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, that might also be a dismissal.

When an employee chooses to resign, this is not dismissal.

Also, an employer is not dismissing an employee just because they do not offer a new contract when:

• the old contract ends
• the employee has completed the specified task they were employed to complete
• the employee was only employed for seasonal work and the season ends.

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’, ‘unjust’ and ‘unreasonable’ dismissal

A dismissal may be unfair if it is one, 2 or all 3 of ‘harsh, ‘unjust’ or ‘unreasonable’.

This is explained in section 387 of the Fair Work Act.

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.

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.