New “Two-Stage” Test for Unfair Dismissal Claims

In the final report from the Productivity Commission’s workplace relations inquiry, the PC has recommended a new “two-stage test” for unfair dismissal claims. The first stage would determine if there was a valid reason for the dismissal, and if yes, the second stage would consider whether due process was followed. This would reduce the circumstances where an employee’s claim has been successful due to their employer failing to follow due process.

I have read many case decisions where the employer may well have had a valid reason for terminating the employee’s employment, but essentially lost the case based on poor process. The two-stage test would better deal with this issue with the focus being more on whether or not there was a valid reason for dismissal.

The PC also recommends taking the emphasis off reinstatement, noting that compensation is much more commonly ordered.  In a Fair Work Commission report for 2014/15, less than one per cent of employees were awarded reinstatement as their remedy.

Leave a Comment


Facebook IconLinked in
Visit Us On FacebookVisit Us On TwitterVisit Us On Linkedin