Unfair dismissal is when an employer gets rid of an employee without good reason or without following the proper procedure.

1) Time Limit

To bring a claim of unfair dismissal, the claim must be brought within 3 months from the dismissal.

2) Eligibility

To bring a claim, you must satisfy the eligibility criteria.

• Firstly, the claimant must be an ‘employee’ – Which is defined as “An individual who works under a contract of employment” (ERA 1996, s230(1)).
• The claimant cannot be someone from an ‘excluded class’ – An excluded class is a certain class of employee, which includes members of the police service for example.
• Must have had sufficient ‘continuous employment’ – The employee must have worked at the company continuously for 2+ years.

3) Has the employee actually been dismissed?

1. Actual Dismissal – When the employment contract has been terminated by the employer with or without notice.
2. Constructive Dismissal – Where an employee has terminated his own contract due to the actions of the employer
3. Expiry and non-renewal of a fixed-term contract

The burden of proof will be on the employee to prove that they have been dismissed by one of the above ways.

4) Was there a fair reason for dismissal? – If there is a valid reason, then it will not be an unfair dismissal.

a) Capability – It will be deemed a fair dismissal if the employee is dismissed to a lack of capability to do the work. For example, he may not be qualified for the role or he has been incompetent in his duties.

b) Conduct – It will be deemed a fair dismissal if it is due to the poor conduct of the employee. The poor conduct must happen within the employment. Bad conduct includes disobeying a lawful order, breaching your duty of fidelity, breach of discipline (fighting, theft etc.)

c) Redundancy – It will be a fair dismissal if it is because of redundancy.

d) Illegality – Where it is now illegal for some reason to keep working there.

e) Some other substantial reason

f) Did the Employer Act Reasonably in Dismissing the Employee? – 3 things the court consider:

1. Size of company – A larger company should have better policies in place to ease dismissal. Smaller companies will have more leniency.
2. Equity – The court will look if others in the same position have been treated/dismissed the same way.
3. Long-serving employees – Long term employees will need to be treated with respect. If not, the court is more likely to deem it an unfair dismissal.

5) Sufficiency of the reason to dismiss

Was there a better alternative than to immediately dismiss? If it is deemed that a suspension was more appropriate and the dismissal was too much, then it will likely be deemed an unfair dismissal.

6) Remedies if successful in unfair dismissal claim

a) Re-instalment

b) Re-engagement

c) Compensation