Employees whose have been dismissed unfairly may be able to take action under the Fair Work Act 2009 (Cth) or the Fair Work Act 1994 (SA).

Harsh, unjust or unreasonable

A dismissed employee has the task of convincing the relevant body that the dismissal was, in real and objective terms, harsh or unjust or unreasonable. This will depend on the facts in the particular case and on general standards of industrial fairness. For instance, in cases of inefficiency or misconduct, (except where there is gross inefficiency or gross misconduct) an employer is expected to clearly and formally warn the employee that a repetition of the inefficiency or misconduct, or similar behaviour, will not be tolerated and, if it is repeated, that dismissal will result. An employer who, by indulgence or inattention, has permitted certain practices to occur in the workplace (such as sleeping on the job) cannot decide to amend the situation by sacking a worker as an example to the rest. Before dismissal an employer is expected to consider any alternative action, such as, if the circumstances warrant, changing the employee to a lower classification or job in the workplace. Although this may amount to dismissal if the employee refuses, the fact that the harshness of the dismissal was offset by the offer of other employment will be taken into account.

Where there has been misconduct serious enough to warrant dismissal, (such as theft) the employer does not have to prove beyond reasonable doubt that that a particular employee is guilty. However, the employer must have conducted a reasonable investigation and be satisfied on the balance of probabilities that this particular worker has committed misconduct serious enough to warrant dismissal

[Hooper v. Bi-Lo Pty Ltd I.76/1992].

Sexual harassment at work is a form of serious misconduct, and can be a valid reason for dismissal (including without notice) under the Fair Work Act 2009 (Cth).

When is a dismissal unfair?

Unfair dismissal laws do not seek to intrude on an employer's right to make the normal decisions about the manner in which the business is conducted. But when making those decisions, the employer must act fairly, taking into account all relevant circumstances before deciding to dismiss. Each case is considered individually. As a general guide, an employee should not be dismissed without good reason and the act of dismissal should be handled without unnecessary offence recognising that people are entitled to be treated with dignity.

Some examples of where it would be fair to dismiss an employee could include:

An employee who neglected their work, who did not have or use the minimum skills demanded by the job, or who disregarded instructions, is unlikely to succeed in a claim, unless they can show that the events complained of were trivial and harmless. On the other hand, if the employer gave no particular instructions about what to do, gave no warning that the employee's performance was unsatisfactory, and offered no correction when mistakes were made, then the dismissal may be unfair. It is also relevant to look at how long the employee had held the job, whether they were told to do it in a particular way, and whether they were warned or given sufficient opportunity and assistance to improve or modify their performance or behaviour. The results of the dismissal for the employee - for example, a ruined reputation or financial trouble - may not in themselves make the dismissal unfair. Lastly, it must be done in a reasonable fashion remembering the employee is entitled to the respect appropriate to the situation.

Constructive dismissal

'Constructive dismissal' is the term used where the employee leaves the employment, apparently voluntarily, because it has become untenable to continue working there. In some cases, the commission or the court will conclude that, although the employee ostensibly resigned, the resignation was not voluntary but a 'constructive dismissal' and therefore the employee can claim for unfair dismissal. Constructive dismissal only occurs if an employer behaves in a manner that is considered to breach the terms of the employment contract to the point where it is an effective dismissal.

One example may be a situation in which the employee suffers from sexual harassment at work and the employer does nothing to stop the harassment. Another example is where the employer threatens to sack an employee if they do not resign. However, an employee cannot turn a voluntary resignation into a constructive dismissal just because they are faced with a disagreeable situation and respond to it by resigning. To constitute constructive dismissal there must be a lack of alternative or any reasonable choice. Because this may be difficult to prove, a decision to resign should not be made in expectation that an unfair dismissal claim can be made later.