This website applies only to residents and the law of New South Wales, Australia.

3. THE FEDERAL SYSTEM (continued)

3.1 What is unfair dismissal in the federal system?

What are valid reasons for dismissal?

Generally, the lawful reasons an employer may give for terminating your employment are:

Redundancy
Misconduct
Lack of ability to perform the required duties (eg; poor work performance)

Redundancy

Redundancy occurs when the job you are doing is no longer needed to be done by anyone. This may be because of a downturn in production, sales or the economy; the introduction of new technology; business relocation; the sale or merger of the business; or an internal restructure of the business. It is the job that becomes redundant, not you. This does not necessarily mean you must leave that workplace - you may be offered another position within the company or organisation.

You will generally not be successful in an unfair dismissal claim if there is a genuine redundancy. However, if your employer has advised you that your position is being made redundant but then advertises a position similar to yours or employs someone else to do your job, it may not be a genuine redundancy and is therefore open to challenge.

Misconduct

Valid reasons for dismissal include: theft, fraud, harassment, bullying, persistent lateness, disobedience, coming to work drunk or under the influence of drugs, rudeness to clients, customers or other employees; poor timekeeping (evidenced over a period of time); and absenteeism without reasonable cause.

If the behaviour amounts to serious misconduct the employee may be sacked on the spot without notice. However, to allege serious misconduct and sack an employee without notice, the employer must still follow fair procedures. This may mean allowing the employee to respond to allegations, conducting a fair investigation of the facts and a consideration of the employee's previous work record and length of service.

In rare cases, where the employee has lengthy service and an otherwise unblemished work record, it may be considered harsh (and therefore an unfair dismissal) to dismiss an employee for misconduct. This will depend on the seriousness of the misconduct.

Poor work performance and warnings

If an employee is genuinely unable to perform the required duties of the job the employer is validly able to dismiss that employee. However for this to be fair, the employer will usually need to show that it had raised these concerns with you and given you a chance to respond to any allegations, or to take steps to improve your performance. You should be allowed enough time to fix any perceived problem.

The legislation doesn't spell out how your employer should raise its concerns, so what is considered fair will depend on the circumstances. There is no specific requirement as to the number of warnings that must be given. This will usually depend on the circumstances and the seriousness of the allegations. You could expect a warning prior to your dismissal to put you on notice that if your conduct or behaviour doesn't improve, you will be dismissed. This warning doesn't need to be in writing.