Only if you have engaged in serious misconduct.

Serious misconduct is a severe breach of contract that justifies immediate dismissal without notice. This type of behavior significantly impacts the business or poses serious risks to the safety and well-being of colleagues.

Under typical conditions, an employer is required to provide written notice of termination, including the termination date, and may ask the employee to work through the notice period or, alternatively, provide payment in lieu of notice. However, when serious misconduct is involved, the employer is entitled to terminate the employment relationship immediately, bypassing the usual notice requirements.

Examples of serious misconduct include:

1. Theft or Fraud: Misappropriation of company property or engaging in fraudulent activities.

2. Dishonesty: Acts of dishonesty that undermine the trust essential to the employment relationship.

3. Intoxication at Work: Attending work under the influence of drugs or alcohol, which compromises safety or performance.

4. Criminal Conviction: Being convicted of a criminal offence that is incompatible with the employee’s role or duties.

5. Gross Negligence: Reckless disregard for one’s duties, resulting in significant harm or risk to the business.

6. Violent Behaviour: Engaging in physical altercations or threatening colleagues with violence.

7. Disobeying Lawful Directions: Repeatedly failing to comply with lawful and reasonable instructions from the employer.

8. Safety Breaches: Ignoring or violating workplace safety rules, putting oneself or others at risk.

9. Inappropriate Use of Confidential Information: Mishandling or misusing sensitive company data or trade secrets.

It is important to note that while employers have the right to dismiss for serious misconduct, the circumstances must be carefully assessed to ensure that the dismissal is justified. If you have been dismissed for serious misconduct, it is prudent to seek expert legal advice. A lawyer can help determine whether your dismissal was handled lawfully and explore any potential grounds for challenging the termination through a legal claim.

Unfair dismissal occurs when an employee is terminated in a manner that is harsh, unjust, or unreasonable. Under the Fair Work Act 2009 (Cth), for a dismissal to be considered unfair, it must lack a valid reason related to the employee’s capacity, conduct, or operational requirements of the business. Additionally, the process followed by the employer in effecting the dismissal must have been procedurally fair. This includes providing the employee with an opportunity to respond to any allegations before the decision to dismiss is made. If an employee believes their dismissal was unfair, they may lodge a claim with the Fair Work Commission within 21 days of the dismissal.

To be eligible to make an unfair dismissal claim under the Fair Work Act 2009 (Cth), an employee must meet certain criteria:

1. Minimum Employment Period: The employee must have been employed for at least six months with the employer. For employees of small businesses (fewer than 15 employees), the minimum period is 12 months.

2. Income Threshold: The employee’s annual earnings must not exceed the high-income threshold, unless they are covered by a modern award or enterprise agreement.

3. Employment Status: Certain employees, such as casual employees without a pattern of regular and systematic work or those on fixed-term contracts, may not be eligible to make an unfair dismissal claim.

If these criteria are met, the employee may proceed with an application to the Fair Work Commission to have their case heard.

Employers can defend against an unfair dismissal claim by presenting several key arguments:

1. Valid Reason: The employer can argue that the dismissal was based on a valid reason, such as misconduct, poor performance, redundancy, or breach of contract.

2. Procedural Fairness: The employer may demonstrate that they followed fair procedures in dismissing the employee, including providing notice of the reasons for dismissal, giving the employee an opportunity to respond, and conducting a thorough investigation.

3. Genuine Redundancy: If the dismissal was due to redundancy, the employer can argue that the redundancy was genuine, meaning the job no longer exists and alternative employment was explored but not available.

4. Small Business Fair Dismissal Code: Small businesses (fewer than 15 employees) can rely on the Small Business Fair Dismissal Code as a defence if they adhered to its guidelines when dismissing the employee.

These defences must be substantiated with evidence, and the Fair Work Commission will consider them in the context of the overall fairness of the dismissal.

If the Fair Work Commission determines that an employee has been unfairly dismissed, several remedies may be available:

1. Reinstatement: The employee may be reinstated to their former position or a comparable one within the organisation, with continuity of service and benefits.

2. Compensation: If reinstatement is not feasible or desirable, the Commission may order the employer to pay compensation. Compensation is capped at six months' wages, or half of the high income threshold, and is intended to cover the financial losses resulting from the dismissal.

The remedies are intended to restore the employee to the position they would have been in had the unfair dismissal not occurred, as far as practicable.

Procedural fairness, also known as "natural justice," plays a crucial role in determining whether a dismissal was unfair. For a dismissal to be procedurally fair, the employer must:

1. Provide Notice: The employee must be informed of the reason for their potential dismissal and the evidence supporting it.

2. Opportunity to Respond: The employee must be given a reasonable opportunity to respond to the allegations, including time to prepare a defence or explanation.

3. Impartial Decision-Making: The decision to dismiss must be made by an impartial person or panel, without any bias or pre-determined outcome.

4. Support Person: The employee should be allowed to have a support person present during any meetings or discussions related to the dismissal, especially if the employee requests one.

A failure to adhere to procedural fairness can render a dismissal unfair, even if there was a valid reason for the termination. The Fair Work Commission carefully examines whether these procedural elements were observed when assessing an unfair dismissal claim.