UNFAIR DISMISSAL – YOUR QUESTIONS ANSWERED
What is Unfair Dismissal?
Unfair Dismissal is the term used to describe a dismissal that is considered “harsh, unjust or unreasonable” under section 385 of the Australian Fair Work Act.
Unfair dismissal cases are dealt with by the Fair Work Commission.
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Have I been Unfairly Dismissed?
To determine whether your dismissal was unfair the Fair Work Commission must take into account certain criteria. These include:
- whether there was a valid reason for your dismissal
- whether you were notified of that reason
- whether you were given an opportunity to respond to that reason
- any refusal by the employer to allow you to have a support person
- whether you had previously been warned in connection with the reason
- the size of your employer’s business
- any other matters that are considered relevant
The Fair Work Commission will weigh up all factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable. No factor alone will necessarily determine the case.
Am I eligible to make an Unfair Dismissal claim?
You are eligible to make an unfair dismissal claim if you:
- were an employee, and
- were dismissed, and
- earn less than the high income threshold (currently $133,000), and
- have completed the minimum period of employment.
If you earn more than the high income threshold you may be eligible if you were covered by an award or enterprise agreement.
How long do I need to have been employed to qualify for Unfair Dismissal?
You must have served the minimum employment period before you can make an unfair dismissal claim. The minimum employment periods are:
- 1 year if the employer has less than 15 employees, or
- 6 months if the employer has more than 15 employees.
Service as a casual employee counts towards the period of employment if it was on a regular and systematic basis. Any unauthorised absences and most periods of unpaid leave do not count as service.
In most cases service with an old employer whose business transferred to a new employer will count towards continuous service with the new employer.
How long do I have to make an Unfair Dismissal claim?
You must lodge an application for unfair dismissal within 21 calendar days of the dismissal taking effect (usually your last day of work). The Fair Work Commission has discretion to extend this timeframe if there are “exceptional circumstances”.
What are the possible outcomes?
If the Fair Work Commission finds that your dismissal was harsh, unjust or unreasonable it may order that:
- you be reinstated, or
- you be awarded compensation up to 26 weeks pay.
Any compensation ordered by the Fair Work Commission will not include a component for shock, distress or humiliation caused by the dismissal. The Fair Work Commission must also reduce the compensation if it satisfied that your misconduct contributed to the dismissal.
What if I have been made redundant ?
If the redundancy is not genuine then you are eligible to make an unfair dismissal claim.
A redundancy is not genuine if:
- your employer still requires your job to performed by someone, or
- your employer did not consult with you prior to the redundancy, or
- your employer failed to redeploy you into any existing vacancy.
Are casual employees protected by Unfair Dismissal legislation?
Yes – so long as you can demonstrate that you worked on a “regular and systematic basis” and had a “reasonable expectation” of ongoing employment.
What if I have been dismissed on discriminatory grounds?
There are prohibitions against dismissing employees on discriminatory grounds or for exercising a workplace right such as utilising sick leave.
Is being forced to resign the same as Unfair Dismissal?
Most dismissals occur when an employer terminates an employees employment.
However, in circumstances where your employer has behaved towards you in a way that forces you to resign, it can be considered a “constructive dismissal”.
The key to establishing your constructive dismissal argument is being able to show that your employer’s conduct or course of conduct caused you to leave. You have to be able to show that something that your employer did, or failed to do, left you with no other reasonable option but to leave your employment.
Can I appeal a decision of the Commission ?
The Fair Work Commission can grant an appeal of a decision made in an unfair dismissal claim if it is “in the public interest” to do so.
To the extent that an appeal is based on an error of fact, the appeal will only be allowed where that error is considered a “significant error”.
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