An employee has been unfairly dismissed if Fair Work Australia (FWA) finds that:
- they were dismissed, and
- the dismissal was harsh, unjust or unreasonable, and
- the dismissal was not a case of genuine redundancy.
It’s not an unfair dismissal if the employer is a small business employer and they follow the Small Business Fair Dismissal Code when dismissing an employee. A small business employer is defined as someone who employs fewer than 15 employees (up to 1 January 2011 this means 15 full-time equivalent employees). Please note from 1 January 2011, this method of calculation will change and will be based on a headcount of each employee, irrespective of hours worked. The headcount includes casuals employed on a regular and systematic basis, employees of associated entities, and the employee/s being dismissed.