Unfair dismissal

Unless a dismissal is for an automatically unfair reason, it must meet the following statutory “fairness” test, which is found in section 98 of the ERA 96:

An employer cannot fairly dismiss an employee unless it can demonstrate:

• a potentially fair reason for dismissal; and that

• the employer acted reasonably in all the circumstances in dismissing for that reason.

Section 98 contains a statutory list of fair reasons. Unless a dismissal falls within one of the categories in the list, it cannot be fair. The potentially fair reasons are:

• capability or qualifications;

• conduct;

• redundancy;

• to comply with a legal duty or restriction; or

• some other substantial reason.

Compulsory retirementis no longer a fair reason for dismissal, following the abolition of the default retirement age (see Chapter 6: Age discrimination). The last possible date for a retirement under the statutory retirement procedure was 5 October 2012.