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Workchoices – Unfair Dismissals |
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 Exclusions for Unfair Dismissals Making a Claim |
An employee may apply to the Australian Industrial Relations Commission for a remedy if the employee is terminated in breach of the Workplace Relations Act 1996 (Cth) (the WRA). One of the grounds of breach is if the termination of employment was harsh, unjust or unreasonable.
In the determining whether the termination was harsh, unjust or unreasonable the Commission will have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.
In one of the first arbitrated unfair dismissal cases in the Commission, Commissioner Raffaelli commented while the employer is required to give the employee an opportunity to respond, the Act “does not specify the extent of the opportunity that has to be afforded. Much less does it require that an employer accept an employee's side of things” (Fayad v Electrical Home Aids Pty Ltd ,AIRC (PR973862), 7 September 2006).
The Work Choices amendments do not however impact upon the employee’s entitlement to bring a claim for unlawful dismissal due to an invalid reason.
An invalid reason includes, but is not limited to:
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