ARTICLE · 17 AUGUST 2016

Termination gets personal - could employee dismissal be considered unfair?

Sparke Helmore Lawyers

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Employers must consider the employee's personal circumstances in case that termination could be considered unfair.

AustraliaEmployment and HR

Andrew Ross (Formerly With Sparke Helmore Lawyers)

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Terminating an employee can easily turn into a legal minefield for employers if they don't exercise their power to do so in a lawful, just and reasonable manner.

In exercising this power, employers must consider the employee's personal circumstances and identify whether they are so extraordinary that termination would be considered unfair in line with the Fair Work Act 2009 (Cth) (the FW Act).

In Dennis Sipple v Coal & Allied Mining Services Pty Ltd T/A Mount Thorley Warkworth Operations [2015] FWC 1080 (Dennis Sipple v Mount Thorley), the full bench of the Fair Work Commission (FWC) found that the employee's personal circumstances, such as his age, literacy and injury, were not so extraordinary to prove the dismissal was unfair, that is, harsh, unjust or unreasonable.

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