An employee’s dismissal is automatically unfair – if they have been dismissed for a reason1 listed in section 30(1) of the ERA. In such a case, the Tribunal does not need to consider the substantive or procedural fairness of the dismissal, e.g. if the employer acted within the "range of reasonable responses" 2 or followed the Standard Disciplinary Procedures set out in Part B of the 4th Schedule of the ERA.
There is no legal defence for a dismissal that is automatically unfair.
In the case of Hurley v Gatsby Inc, Ms Hurley was dismissed due to her “refusal to adhere to company’s amended Commission structure in light of company’s economic downturn".
The Tribunal found that Ms Hurley was dismissed - because she made a complaint about her “contract of employment or practice of the employer”. And therefore, Ms Hurley’s dismissal was automatically unfair - because she was dismissed for a reason listed in section 30(1) of the ERA. See section 30(1)(c)(iv) of the ERA.
In the case of Hurley v Gatsby Inc, Ms Hurley was dismissed due to her “refusal to adhere to company’s amended Commission structure in light of company’s economic downturn".
The Tribunal found that Ms Hurley was dismissed - because she made a complaint about her “contract of employment or practice of the employer”. And therefore, Ms Hurley’s dismissal was automatically unfair - because she was dismissed for a reason listed in section 30(1) of the ERA. See section 30(1)(c)(iv) of the ERA.
The Tribunal ordered Gatsby Inc to pay an additional award of $32,339.84 to Ms Hurley - because she was dismissed for a reason listed in section 30(1)(c) of the ERA 2012. Her total compensatory award was $50, 997.71.
Dismissal on the Grounds of Pregnancy
In the case of Hazell v Markham Construction Ltd, the Tribunal ruled that Ms Hazell's dismissal was not automatically unfair - because she was not dismissed on the grounds of her pregnancy - in breach of section 30(1)(c)(x)3 of the ERA. See paragraphs 51 - 54 of the case transcript.
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1. The reasons listed in section 30(1) of the ERA include performing jury duty or participating in a regional or international sporting event. Hence, it is automatically unfair to dismiss an employee for such a reason. See sections 31(1)(c)(viii), 31(2)(a), 31(2)(b) of the ERA.
2. See paragraphs 41 - 44 and 51 - 53 of First Citizens Bank v Brathwaite (CA) for further information about the range of reasonable responses.
3. From 21 September 2020, a dismissal on the grounds of pregnancy is automatically unfair under section 30(1)(d) of the ERA: 2nd Schedule of the Employment (Prevention of Discrimination) Act 2020. Therefore, an additional award of up to 52 weeks’ wages no longer applies to such a dismissal: paragraph 1(c) of the 5th Schedule of the ERA.