What makes a dismissal unfair in the first place?

The Fair Work Act states that a dismissal is unfair when characterised as at least one of the following:

Harsh - Where the dismissal was not proportionate to the employee’s misconduct and constituted and overreaction.

Unjust - If there was no misconduct on the part of the employee or such misconduct was trivial.

Unreasonable - Where the decision of the employer to terminate the employee appears to be unreasonable in all circumstances. To determine whether a dismissal is harsh, unjust or unreasonable the Fair Work Act sets out the following criteria (among others):

• Whether any warnings were previously given regarding unsatisfactory performance

• Whether the employee was notified of the reason for their dismissal

• Whether the employee was given an opportunity to respond to the reason given

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