Three Key Aspects to Defending an Unfair Dismissal Claim

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What does the Fair Work Commission look at when assessing an unfair dismissal claim?  

I’m Hamish Procter from Aitken Legal.  In this video, I am going to talk to you about the three key factors that the Fair Work Commission will consider when assessing the merits of an unfair dismissal claim.  Note I am not addressing jurisdictional objections that an employer might be able to make to an unfair dismissal, as that is a topic for another time.  

In order to defend an unfair dismissal claim, an employer will need to show three things. Firstly, that it had a valid reason for the dismissal.  Secondly, that it followed a process that is compliant with the Fair Work Act, and thirdly, that the dismissal was not harsh, unjust or unreasonable. 

Quite often employers come to Aitken Legal having already terminated an employee and wanting advice regarding an unfair dismissal claim that has been commenced against them.  In many cases, the reason they have terminated the employee appears to be a valid reason.  However, despite appearing to have a valid reason, quite often we have to advise the employer that they are at risk of losing the unfair dismissal claim, because they have not followed a fair process in effecting the termination.  For that reason, we always recommend that employers take advice before terminating, so that they can ensure that their termination process will hold up before the Fair Work Commission.

The other factor which the Fair Work Commission looks at is whether the dismissal is harsh, unjust or unreasonable.   It is actually possible for the Fair Work Commission to find that there was a valid reason for the termination, and that a fair process was followed, but that the dismissal was harsh, unjust or unreasonable due to the presence of another factor or factors.  For example, it is necessary that an employer take into account an employee’s length of service, disciplinary record and whether termination is consistent with the way other employees have been treated in similar circumstances. 

Given that there are so many factors that need to be considered before terminating an employee, it is a good investment to seek advice from Aitken Legal before you act on that termination.
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Видео Three Key Aspects to Defending an Unfair Dismissal Claim канала Aitken Legal - Employment Law Specialists