An employee may claim their dismissal was unjustifiable if they can show they were dismissed and they believe that:
- the employer did not have a good reason to dismiss them
- the process was unfair
Employers do not have to have the process perfect; minor errors may not make the whole process unfair. What is fair depends on the circumstances. Any relevant provisions in the employment agreement and workplace policies or processes must be followed. Where the workplace does not have clear guidance then the test will be: ‘what could a fair and reasonable employer have done in the circumstances’. For example, if an employment agreement does not have a notice period, then reasonable notice must be given.
Examples of processes which may end with a good reason for dismissal include:
- disciplinary process
- managing employee performance issues
- workplace change process
- bullying, harassment and discrimination
If an employee is dismissed, they have the right to ask the employer for a written statement of the reasons for dismissal. This request can be made up to 60 days after they find out about the dismissal. The employer must provide the written statement within 14 days of such a request. If the employer fails to provide this written statement, the employee may be able to raise a grievance after the end of the 90-day notice period in special circumstances.
Raising a grievance after the end of the 90-day notice period