What makes a dismissal harsh, unjust or unreasonable
The factors the Fair Work Commission actually weighs under section 387, in the order it lists them.
"Harsh, unjust or unreasonable" is not one test with a single answer. The Fair Work Commission works through a list of factors under section 387 of the Fair Work Act, and weighs them together rather than requiring every one to point the same way.
The factors the Commission checks
- Whether there was a valid reason for the dismissal connected to the employee's capacity or conduct.
- Whether the employee was notified of that reason before the decision to dismiss was made.
- Whether the employee had a genuine opportunity to respond to the reason.
- Whether the employer unreasonably refused to allow a support person at a dismissal-related discussion.
- Whether the employee was warned about unsatisfactory performance before being dismissed for it, where performance was the issue.
- The size of the employer's enterprise and whether it had access to dedicated human resources expertise, and how that affected the process followed.
A failed process can be enough on its own
Where the dismissal is for alleged misconduct, the Fair Work Commission's guidance sets out what an employer needs to show to satisfy the fairness test: a full and reasonable investigation, a genuine opportunity for the employee to respond, an honest and reasonable belief in the employee's guilt based on the information available, and that any mitigating circumstances were weighed before deciding dismissal was justified. Its own words on what happens if any of that is missing: "A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable." A dismissal can be substantively justified and still be found unfair because of how it was carried out.
Where this came from
- Fair Work Commission: Valid reason relating to capacity or conduct.
- Fair Work Commission: Overview of unfair dismissal.