Filing A Successful Unfair Dismissal Claim

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When an employment relationship ends in a difficult or cantankerous manner, there are often ramifications for both the employer and the employee. Oftentimes, it is difficult to discern if the employee was fired for good cause, fired unfairly, or if the circumstances resulted in an employee feeling as if there was no alternative but to quit their job. The determination as to if the job loss was an actual firing versus a forced resignation is significant as it creates a difference in the employee’s options. 

If an employee was actually fired for the following, it is not an unfair dismissal;

  1. Capacity – The employee genuinely did not have the skills necessary to successfully perform the job requirements
  2. Performance – The employee was not performing up to the standards necessary for the job to be competently completed. With performance it is important for the employer to have documented the employee’s lack of proper performance ie. coming in late, incomplete assignments, missing deadlines
  3. Misconduct in the Workplace – The employee has behaved or is causing behavior that is unprofessional and inappropriate in the work place environment. Again, it is important to document the employee’s actions that rise to the level of misconduct
  4. Redundancy – The employee’s job is no longer needed because the industry has changed or technological advances have eliminated the work
  5. Voluntary Resignation – The employee gives notice and leaves their place of employment of their own free will

However, if an employee is terminated directly or constructively and claims that they were either let go for an unfair reason or were, essentially, forced to quit, then a claim for unfair dismissal can be raised by the employee.  First let’s look at the difference between a direct unfair dismissal verses a constructive unfair dismissal.


Direct Unfair Dismissal: If an employee can prove that they were dismissed for an illegal reason such as a disability, or discrimination, or a legitimate medical condition, then an unfair dismissal claim can be made.


Constructive Unfair Dismissal: This type of unfair dismissal can be more difficult to assess. In this instance the employee may claim that they had no other option but to quit their job. An example of this might be if an employer tells an employee, “If you don’t quit, I will fire you.” In this situation an employee may feel forced to resign so as not to have to admit to having been fired from their employment to the next employer. 

Constructive Dismissal can also occur as a result of the following events/actions;

  • Changes in management or job requirements that the employee cannot possibly meet
  • Bullying by other employees
  • Harassment or abuse being allowed by the employer and being perpetrated by a supervisor/employees or customers
  • Unfair scheduling or an increase in working hours beyond the norm
  • A significant cut in wages
  • Refusal to allow sick/holiday time
  • Demotion


If an employee can show that their position and/or their place of employment so adversely affected their ability to do their job, they may have a case for unfair dismissal.

Dismissal from employment is a stressful and painful experience for most employees. And, when matters are made worse by knowing you were unfairly dismissed or were forced to resign, the situation is almost always devastating and angering. But, regardless of the emotions that can arise from these circumstances, it is important to remain calm and logical and seek the assistance of those who can help you fight an unfair dismissal claim. By doing so it is possible that the remedy of either being reinstated in your position or being granted the benefits you deserve for having been unfairly dismissed from your employment, will be available to you. 

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.


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