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Unfair dismissal

Unfair dismissal occurs where a worker is sacked by their employer and the worker believes the action is harsh, unreasonable or unjust.

It’s  not an unfair dismissal if the employer is a small business employer (that is they employ fewer than 15 full-time or full-time equivalent employees and the employer follows the Small Business Fair Dismissal Code when dismissing a worker.

If someone believes they have been unfairly dismissed, it is important to act quickly, as an unfair dismissal application must be made to Fair Work Australia within 14 days.

Procedures employers must follow before dismissing an employee

  1. Identify the problem. Ask the question: “Does the employee know what they are supposed to do?”
  2. Give the employee an opportunity to explain their actions or if there are other reasons that may be affecting their performance.
  3. Counsel the employee so they understand the standards expected of them. Offer them assistance and guidance in achieving the expected standards.
  4. Keep confidential records of any counselling undertaken and give the employee a copy of the written records including any formal warning letters.
  5. Allow the employee to comment on the written records and give a written response if they wish.
  6. Give the employee adequate time to improve. If at the end of this period the employee shows no willingness to improve, issue a final warning in writing to the employee. This notice will inform the employee that they are at risk of disciplinary action, possibly including dismissal, if they do not cease the unsatisfactory behaviour immediately.
  7. At every stage of the process, allow the employee to have another employee or union representative present as a witness. [Fair Work Homepage]


Copyright © 2011 Money Stuff

An initiative from NSW Fair Trading


Last Updated: 26 November 2012

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This information must not be relied upon as legal advice. For more information about this topic, refer to the appropriate legislation.

© State of New South Wales through NSW Fair Trading
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