It is lawful for an employer to dismiss an employee if it is a genuine redundancy or if the dismissal would not be considered harsh, unjust or unreasonable or if the dismissal is consistent with the Small Business Fair Dismissal Code.
When the Fair Work Commission considers whether a dismissal is harsh, unjust or unreasonable, they take into account a range of factors including:
- if there's a valid reason for the dismissal relating to the employee’s conduct or capacity
- if the employee is notified of the reason and given an opportunity to respond
- if the dismissal relates to unsatisfactory performance, then whether the employee is warned about it before the dismissal.
From 1 January 2010, the National Employment Standards (NES) replaced the non pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard). Under the NES, the rules relating to redundancy and redundancy pay have been modified. The NES also cover notice periods when an employee is dismissed.