The Fair Work Act 2009 (Cth) (the Act) has provisions in place protecting Australian employees from dismissal that is “harsh, unjust or unreasonable”: But what does the expression mean? It’s understandable that some employees may feel that any action of dismissal can be harsh, unjust or unreasonable, no matter the circumstance, however, just because a person may feel that way, it doesn’t necessarily mean that the law will view a dismissal as harsh, unjust or unreasonable. Although with that being said, the law does set out what is meant by dismissal that is harsh, unjust or unreasonable which this piece will explore.
In Bostik v Gorgevski (No 1) (1992) 41 IR 452, the Federal Court of Australia Industrial Division, made the following comments in relation to the meaning behind the words harsh, unjust or unreasonable (at 459):
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think that any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”
It is interesting to note the inclusion of “or” within the provisions can also refer to a dismissal that may be harsh, but not unreasonable for example.
McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 observed that the disjunctive use of the word “or” can mean that a termination of employment “may be unjust because the employee was not guilty of misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
What factors are taken into account when determining whether a dismissal is harsh, unjust or unreasonable?
Section 387 of the Act sets out the considerations the Fair Work Commission (FWC) must make when determination whether a dismissal was harsh, unjust or unreasonable, which are as follows:
- whether there was a valid reason for dismissal related to the person’s capacity or conduct, including the effect on the safety and welfare of other employees; and
- whether the person was notified of the reason for dismissal; and
- whether the person was given the opportunity to respond; and
- any unreasonable refusal by the employer in allowing the person to have a support person to assist in any discussions related to the dismissal; and
- if the reason for dismissal was due to unsatisfactory performance, whether the person has been provided any warning about their performance before the dismissal; and
- the degree to which the size of the employer’s enterprise would be likely to be impacted on the procedures followed in effecting the dismissal; and
- the degree which the absence of human resource management specialists or experts would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters the FWC considers relevant.
Needless to say it’s never pleasant for anyone to be dismissed from their position, and if you have any questions or concerns relating to any employment issue, please seek the assistance of a lawyer who will be able to help.