The Law requires two (2) limbs to be satisfied in order for an employee applying for Unfair Dismissal to be successful. They are:
- That there is a valid reason for the dismissal; and
- That the dismissal was harsh, unjust, or unreasonable.
Limb number 1 has been variously interpreted clearly, and applies to numerous specific circumstances.
Limb number 2 however, has largely been held to bear a test that involves consideration of “all of the circumstances”.
This means that an employer must be particularly careful to follow proper procedures in order to extrapolate and evaluate “all of the circumstances” relating to the employees employment, and the reasons for the termination, being the reasons why there might be a “valid reason for termination”. The dismissal could be “harsh, unjust or unreasonable” notwithstanding there being a valid reason.
Unfair Dismissals can be brought in the Fair Work Commission, or the Industrial Relations Commission, depending on the nature of employment.
Each of these jurisdictions is essentially a “no costs jurisdiction”. This is different to other civil jurisdictions, in that costs will generally not “follow the event”. If an employee or an employer incurs legal costs in bringing or defending an Application for Unfair Dismissal, those costs are generally not recoverable. There are very limited circumstances in which the costs may be recovered.
It is usual that in an offer of settlement, the settlement sought by the employee, or employer will factor in consideration of the legal costs spent to date.
If you are a small business, the rigor by which you must investigate and adjudicate a possible dismissal is much less, and is described in the Small Business Fair Dismissal Code.
In all circumstances, it is recommended that an employer seeking to dismiss an employee conducts a proper investigation, including a review of previous warnings, interviewing witnesses, and the employee together with a support person.
Access Law Group is experienced in all matters relating to Unfair Dismissal, and can provide advice to you during conference without the need to incur significant costs in researching particular issues and providing formal written advice.
Given the costs constraints in these jurisdictions, Access Law Group will provide commercial advice that considers the fact that if a matter does not settle, the costs won’t be recovered, and you will be required to spend a lot of time preparing your case when that time could be spent on building your business or finding alternative employment.
If you seek advice in relation to bringing or responding to an Unfair Dismissal Application, please urgently contact one of our solicitors as very strict time limitations apply from the date of dismissal, (21 days).