Was the dismissal procedurally fair?

This expert guidance note provides an authoritative overview of the critical elements underpinning procedural fairness in dismissal under the Fair Work Act 2009 (Cth). Practitioners must understand the complex interplay between valid reasons for dismissal, procedural fairness obligations, and the Fair Work Commission’s discretion when assessing whether a dismissal was harsh, unjust, or unreasonable. The document explores nuanced legal requirements and key considerations that influence unfair dismissal claims, highlighting essential statutory provisions and relevant case law without revealing full compliance strategies.

Topics Covered

• Which employees are eligible to make an unfair dismissal claim?
• Small Business Fair Dismissal Code
• Genuine redundancy
• Valid reason for dismissal
• s 387 Fair Work Act 2009 criteria for procedural fairness

Essential Insights

• Assess the statutory criteria that define “harsh, unjust or unreasonable” dismissal under s 387.
• Understand the procedural fairness obligations including notice, opportunity to respond, and support person rights.
• Consider how business size and HR expertise impact dismissal procedures without clear-cut rules.
• Recognise the significance of employer discretion and how mitigating factors may alter harshness assessments.
• Explore how recent case law shapes the interpretation of valid reasons and procedural fairness nuances.
• Identify critical legal risks and strategic compliance considerations in managing unfair dismissal claims.