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What is unfair dismissal?

Julianne Leybag
02 July 2018 3 minute readShare

Before lodging an unfair dismissal complaint, individuals must first make sure that they are well-versed with unfair dismissal and its accompanying terms and conditions. My Business discusses its basics and how individuals can deal with unfair dismissal.

All employees would probably agree that the best way for anyone to permanently leave a workplace is by way of resignation. But there might be instances wherein employees are caught in circumstances beyond their control and are let go by employees due to external factors, such as business closure. But some employees get dismissed unfairly by their employees, and these situations require individuals to act immediately.

What is unfair dismissal?

Simply put, unfair dismissal is a situation wherein an employee’s contract gets terminated by the employer without basis. Unfair dismissal also applies to cases of employment termination with fair reason but with faulty procedures.

Knowing precisely what unfair dismissal is and the conditions that come with it also means that individuals have to be aware of legitimate dismissal reasons. Australian employment tribunals use five main reasons as basis for termination of employment. These are:

  • Capability
  • Conduct
  • Redundancy
  • Breaking the law
  • Other reasons/constructive dismissal


An employee can be dismissed if they exhibit incompetence in their work and in doing their assigned tasks. Lying about qualifications and health conditions can also serve as grounds for dismissal since this falls under the capability clause.


If an employee exhibits misconduct such as theft and/or damage to the business’ property/information, engaging in abusive behaviour, habitual tardiness, absences without prior notice, and other misdemeanours, they can actually be fired from their jobs, since this is considered grounds for proper dismissal by Australian laws.


Dismissal of employees on grounds of redundancy can be a bit tricky, especially for employers who will have to bear the brunt of an unfair dismissal if the redundancy is proven to be a farce. This is why employers and businesses must have a clear-cut policy when it comes to redundancy and what steps must be taken in the event of a redundancy. Moreover, employers are prohibited from picking out employees for redundancy purposes without solid evidence of the said redundancy.

Breaking the law

If an employee brings harm to the business’ overall reputation due to civil/criminal violations and other gross misconduct cases, then this can serve as proper grounds for dismissal, and the employee will not be eligible to file for an unfair dismissal claim.

Other reasons/constructive dismissal

The “any other reason” clause in these guidelines is probably the most widely used by employers when it comes to combating an unfair dismissal case. This clause is basically a wide safety net for miscellaneous reasons behind unfair dismissal cases, such as refusing to work with a colleague, a high-priority client wanting the employee to be relieved from the position, among others.

On the other hand, constructive dismissal is a case wherein an employee is forced to resign due to abusive behaviour coming from the employer/business owner/their immediate superior. While a constructive dismissal can be used by employees on unfair dismissal cases, this can be hard to prove, and employees must have solid evidence first before using this as a claim.

Filing an unfair dismissal claim

If an individual has already made sure that they are indeed a victim of an unfair dismissal, they can choose to assert their employee rights and file for an unfair dismissal claim in an employment tribunal. Once an unfair dismissal has been filed, the employee will then have to prove that an unfair dismissal has taken place, while the employer has to contradict the claim.

Individuals are advised to avail the services of unfair dismissal lawyers or from organisations such as the Citizens Advice Bureau, in order to make sure that they leave no stone unturned when it comes to fighting their case. It is also important for employees to first review their employment contract with their former employer since there might be clauses which can nullify the individual’s claims of unfair dismissal.

Employees must also take note that they can only seek assistance from an employment tribunal if they promptly went under the normal processing guidelines of their company and has still failed to arrive at a proper and just outcome. It is also important to keep track of all correspondence that may take place during the processing of the claim itself.

What is unfair dismissal?
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Julianne Leybag

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