The particular section of the Act is:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.Therefore my advice is that any employer who wishes to terminate an employee need to make sure that proper warning is given before termination. An oppurtunity to improve should also be given. Written warnings should be given as much as possible.
Once I landed on the island, it became a case of getting my witness statements in order. I finally managed to get them done after chasing up the witnesses for 2 days.
The trial started on Friday and the first thing the Arbitrator, Deputy President McCarthy did was to get the parties to mediate. We spent 3 hrs before being able to settle the matter out of court. It was a shame in a way as I was geared up to tear into the sacked employee to show he had deserved the sacking. Be that as it may, it is always better to settle a matter out of court as it gives finality so that no appeals are made.
An interesting aspect of the Fair Works Act is the issue of cost.A person involved in an unfair dismissal case before Fair Work Australia must meet their own costs. Fair Work Australia may order a person to bear some or all of the costs of another person if the unfair dismissal application or response to it:
- was frivolous, vexatious or made without reasonable cause
- had no reasonable prospect of success.