• Unfair Dismissal

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In a perfect world, you wouldn’t need to talk with us about unfair dismissal. In fact, no workers would, because we would all be happy with out jobs and the treatment we receive from our employers. At Employee Assist we have years of experience with unfair dismissal matters and we can help you understand your rights and achieve the best possible outcome.

Unfair Dismissal Free Assessment

What is Unfair Dismissal ? 

The Fair Work Act defines an unfair dismissal as a dismissal that was “harsh, unjust or unreasonable”. The Fair Work Commission is responsible for determining whether a dismissal was unfair and does so under the guidance of federal legislation. Some of the things that the Commission will take into account include whether:

  • there was a valid reason for the dismissal
  • your employer over reacted in dismissing you
  • you were notified of the reason for the dismissal
  • you had an opportunity to respond to that reason
  • warnings were issued about unsatisfactory performance prior to dismissal

The Commission will consider these matters together and weigh up whether there has been a “fair go all round”.

Can I Make an Unfair Dismissal Claim? 

There is a strict 21 day time limit for making an unfair dismissal claim. If  there are exceptional circumstances for the delay then the Commission may allow an extension. To be eligible to make an unfair dismissal claim you must:

  • have been dismissed, and
  • completed the minimum period of employment, and
  • earned less than the high income threshold or covered by an industrial agreement.

If you can not satisfy all three of these requirements then you are not eligible to make a claim.

What is the Process for Unfair Dismissal Claims ?

After receiving your application the Fair Work Commission will convene a conciliation conference between you and your former employer. A conciliator experienced in workplace relations and unfair dismissal laws will facilitate the conciliation. The purpose of the conciliation is to bring the parties together to try and resolve the dispute, and avoid a formal hearing.

When an agreement is reached the parties are required to sign and exchange a written document.  This document will set out the set out the terms on which you have agreed to settle your unfair dismissal claim. Once you have received everything you have agreed to, you should file a notice of discontinuance to formally close your application.

Sometimes the conciliation conference does not result in a settlement. In these circumstances you may elect to proceed to a formal hearing at a later date before a Member of the Commission. Members have a range of powers to decide certain issues and make formal orders. Prior to the hearing you will be directed to file and serve witness statements and formal submissions about your case. The Commission Member will make a binding determination about your case and provide you with a written copy of their decision.

What are the Possible Outcomes ?

If the Fair Work Commission determines that your dismissal was unfair, they may order reinstatement or financial compensation. If the Commission orders reinstatement, you will be appointed to the position you were in immediately prior to your dismissal or to another similar position. In addition, the Commission may make orders to maintain and preserve your period of continuous employment.

If the Commission does not consider reinstatement to be appropriate, then they may order your employer to financially compensate you. The maximum compensation is 6 months pay. However, the Commission can not order compensation for shock, distress or humiliation associated with your dismissal. Similarly, any form of misconduct that contributed to the dismissal will result in a reduction to the compensation amount ordered.

My Job is Redundant. Do I qualify ?

If your dismissal is a “genuine redundancy” you will not be eligible to make an unfair dismissal claim. A genuine redundancy arises in circumstances where your employer:

  • does not require your role to be performed by anyone, and
  • consulted with you about the redundancy prior to making you redundant, and
  • has no other vacancies where you could be redeployed.

If your dismissal is not a “genuine redundancy” then you will  be eligible to make a claim.

I Was a Casual. Am I Eligible to Apply?

You are able to make an unfair dismissal claim as a casual employee so long as you are able to demonstrate that you:

  • had a “regular and systematic” work pattern, and
  • had a “reasonable expectation” of continuing employment.

Your your employment can be regular and systematic even where the times and days that you work are irregular.

Click here to read more about unfair dismissal eligibility for casual employees.

Can I Resign and Then Make an Unfair Dismissal Claim ?

In some cases, if you have resigned you may still be eligible to make an unfair dismissal claim.  A constructive dismissal occurs when the conduct of an employer causes an employee to resign. Such conduct typically includes:

  • threatening to dismiss an employee if they do not resign;
  • failing to adequately respond to issues, such as a bullying or harassment claim;
  • refusing to pay an employee their proper entitlements; and
  • making significant changes to an employee’s employment contract without their agreement;

If you resign under any of these circumstances it is likely that the Commission will determine that the resignation was not voluntary and as a result, that your employer’s conduct was an effective dismissal. Because, constructive dismissal cases are notoriously difficult to establish we recommend contacting us before resigning.

What is a Jurisdictional Objection ?

Jurisdiction is the scope of the Commission’s power and what the Commission can and cannot do. An employer can lodge a ‘jurisdictional objection’ if they believe their dismissed employee does not fall within the Commission’s jurisdiction. This means the employer is saying the Commission does not have the power to deal with the unfair dismissal claim. The Commission will proceed with conciliation unless there is a request by the employer to have any objection heard prior to conciliation.  For example, a jurisdictional objection may arise in circumstances where:

  • the application was lodged more than 21 days after dismissal, or
  • the employee worked for the employer for less than six months.

My Employer is Discriminating Against me. What Should I Do ?

It is against the law for your employer to terminate your employment because of your race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Similarly, it is also against that law for your employer to dismiss you because of a temporary absence or illness or because you have exercised a workplace right.