See Fair Work Act 2009 s.385(b)
Only after determining that an employee is protected from unfair dismissal, and that the employee has been dismissed, can the Fair Work Commission determine whether the dismissal was unfair within the meaning of the Fair Work Act.
In doing so the Commission must consider whether the dismissal was harsh, unjust or unreasonable. This is also called determining the merits of the unfair dismissal claim.
There are 3 substantive elements of an unfair dismissal (apart from the fact of the dismissal itself) that the Commission must be satisfied of:
- the dismissal must be harsh, unjust or unreasonable
- the dismissal must not be consistent with the Small Business Fair Dismissal Code (where the Code applies), and
- the dismissal must not be a case of genuine redundancy.
The power to grant a remedy cannot be exercised without the Commission being satisfied about these 3 matters.