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. However, as someone that’s surfed to this site, you’re probably all too aware that unfair dismissal is an unfortunate reality of the professional world we work in. Unfair dismissal claims generally involve far reaching and complex issues that are best dealt with by dedicated experts. 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.

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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 were allowed 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.

If you reach a mutual agreement to resolve the unfair dismissal claim you will  be required to sign and exchange a settlement agreement or deed of release with your former employer. This document is often referred to as “terms of settlement” and should set out the terms on which you have agreed to settle your claim. Once you have received everything you have agreed to, you should file a notice of discontinuance to formally close your application.

If a settlement is not reached, you may elect to withdraw your application, or 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 decisions. 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.

Do I Qualify if I was Made Redundant?

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:

  • no longer requires 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:

  • were employed on a “regular and systematic basis”, and
  • had a “reasonable expectation” of continuing employment.

Interestingly, the Fair Work Act does not define these concepts. Your employment will, however, be considered both regular and systematic if you are offered work regularly, and generally accept that work when it is offered. It is especially relevant to note that the Commission has also confirmed that the hours and days that a person works is not a relevant consideration. As a result, this means that your employment can be regular and systematic even where the times and days that you work are irregular.

Similarly, once you have attained 6 months’ service with the same employer on a regular and systematic basis, then there is an assumption that it would be reasonable for you to expect continuity of the employment relationship.

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. This is commonly known as a “constructive dismissal”. 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.

I Have Been Dismissed for Discriminatory Reasons. 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. If your employer has dismissed you as a result of one or more of these reasons then you are likely to have an adverse action claim.