Harsh, unjust or unreasonable
The Commission considers a list of factors set out in the Act. In broad terms:
Was there a valid reason? A reason connected to your capacity to do the job or to your conduct. It must be sound, defensible, and well founded, not merely something the employer believed at the time.
Were you told about it? The reason must have been put to you.
Were you given a chance to respond? A real one, before the decision was made, not after.
Were you allowed a support person? If you asked for one and were refused, that counts.
If it was about performance, were you warned? Being dismissed for unsatisfactory performance without any prior warning is difficult for an employer to defend.
Size of the business and access to HR expertise. A small business without dedicated HR is held to a different practical standard than a large employer.
The Commission also considers anything else it thinks relevant. A dismissal can be found unfair because the process was defective even where a valid reason existed. It can also be found fair despite procedural flaws. These are judgment calls, and anyone who tells you a case is a certainty is guessing.
Genuine redundancy is not unfair dismissal
If your role was genuinely no longer required because of operational changes, the employer complied with any consultation obligations in an award or agreement, and redeployment within the business or an associated entity was not reasonable, the dismissal is a genuine redundancy and you cannot claim unfair dismissal.
Redundancies frequently fail this test. Consultation obligations are often ignored. Redeployment is often not properly considered. If you were made redundant and someone else was doing your job three weeks later, that is worth a phone call.
The 21 day deadline
What the Commission can order
Reinstatement is the primary remedy. The Commission cannot order compensation unless it is satisfied that reinstatement is inappropriate. In practice, most applicants do not want their old job back and most matters settle by agreement long before any of this is decided.
Compensation is capped at the lesser of 26 weeks' pay or half the high income threshold, currently $95,050. Compensation cannot include any amount for shock, distress, humiliation or other hurt.
Read more: How unfair dismissal compensation is calculated
How long it takes
Most matters reach a conciliation conference within about 3 to 6 weeks of lodgement, which is generally fast compared with going to court.
Are you eligible?
Not everyone who is dismissed can bring a claim. Check the eligibility rules, or call 1800 UNFAIR and we will tell you in five minutes.