Unfair Dismissal For Employees

It can be quite traumatic and financially distressing to suddenly find yourself out of work especially if you have been forced to resign or unfairly dismissed. If either of these circumstances are familiar to you, you may be eligible to make an unfair dismissal application to the Fair Work Commission (FWC) and seek redress.

Our unfair dismissal lawyers can provide you with tailored legal advice specific to your circumstances. We work with you to see which remedies, such as reinstatement or compensation, might be available to you.

Our employment law team, routinely assist clients and can guide you to achieve the best outcome available to you in your circumstances.

Our employment lawyers will be able to provide you advice on:

  • how to best approach your situation;
  • prepare your unfair dismissal application;
  • negotiate a settlement; and
  • appear on your behalf in any FWC conferences or hearings relating to your unfair dismissal claim.

We are guided by your instructions and can be as involved as you like during this process. We can assist in a variety of ways from providing you initial advice about your dismissal, drafting your application or representing you throughout the FWC conciliation process.

Having an employment law assist you with your unfair dismissal application gives you several advantages.

Firstly, you will have a representative who is experienced in negotiating successful outcomes in the FWC.

Secondly, we can navigate the legal processes and get to a resolution faster. You also won’t be taken advantage of throughout the process. Our lawyers will help you to achieve your desired outcome.


What Is An Unfair Dismissal?

An unfair dismissal does not necessarily mean you have been dismissed by your employer. It may also be considered an unfair dismissal if you were forced to resign by your employer.

The FWC will determine your dismissal to be unfair if it is satisfied that your dismissal (or forced resignation) was:

  • harsh, unjust and unreasonable;
  • not a case of genuine redundancy; and
  • not consistent with the Small Business Fair Dismissal Code (if you are small business employee)

In considering whether the dismissal was harsh, unjust or unreasonable, the FWC will take into account:

  • whether there was a valid reason for the dismissal;
  • whether you were properly notified of the dismissal;
  • given an opportunity to respond or had been warned about the issues leading up to the dismissal; and
  • any other factors that the FWC considers relevant to your specific circumstances.

Eligibility – Who Can Bring An Unfair Dismissal Claim?

There are number of factors that are considered when assessing your eligibility to make an unfair dismissal claim. To start with, you must be considered a national system employee, under the high-income threshold and meet the minimum employment period.

Before lodging an unfair dismissal application with the FWC, our employment lawyers will assess your eligibility. This is a key step to making sure that an unfair dismissal is the best claim for you to make.

So that we can understand and assess your eligibility we will ask about the termination of your employment. This covers the reasons your employer gave you for the dismissal and how it was communicated to you.

We will also ask for other details such as:

  • whether you are an employee;
  • where your employment was based;
  • how long you were employed;
  • when your dismissal took effect;
  • how many employees were employed at the time of your dismissal; and
  • how your employment was terminated and the reason given by your employer for the dismissal.

Answering these questions allows our lawyers to properly assess your eligibility and preparation of your application. At this stage, we may also advise you about alternative options, such as making a general protections.


The 21-Day Time Limit On Lodging An Unfair Dismissal Application

An unfair dismissal application must be lodged with the FWC 21 of days of the dismissal taking effect. This is a very strict timeframe.

There are very limited exceptional circumstances where you can apply for an extension of time.

If you are late, we will work with you to consider your circumstances and whether you might be eligible to file an out of time unfair dismissal application.


The Process Of An Unfair Dismissal Claim

Your unfair dismissal application to FWC will be drafted and carefully constructed so that your version of events are clearly articulated to obtain the best outcome.

Once your application is prepared, we will work with you to lodge the application with the Fair Work Commission and serve a copy on your ex-employer. Your ex-employer will then have 14 days to file an employer response and the matter will be listed for a conciliation. The parties can choose to participate in the conciliation process. If either of the parties refuse to conciliate (which is unusual), your unfair dismissal claim will proceed directly to a conference or full hearing.

If you choose to conciliate, a FWC conciliator will hold discussions between you and your ex-employer to try and reach an agreed settlement. You have the option of attending the conciliation unrepresented. In most circumstances, the employer will be represented and therefore, it would benefit you to be represented. A representative can be an advocate, a lawyer, or a support person.

Conciliation and any agreement reached during the conciliation is treated as private.

If the matter cannot reach a resolution at the conciliation stage, your matter claim will be listed for a conference and/or hearing. This part of the process is formal and adversarial in nature and you should seek representation for this part of the process. The hearing is public and an outcome will be determined by a Tribunal Member of the FWC. Once a decision is made, this decision is final and will be published so that the public can access it.


Remedies And Outcomes

Most unfair dismissal applications are resolved at the conciliation stage, or before hearing by agreement between the parties. This means that both parties will negotiate a settlement to finalise the matter.

If your unfair dismissal application is not resolved at the conciliation stage, your matter will proceed to a conference or hearing. This hearing is before a FWC Member who will determine the outcome.

The FWC considers the primary remedy for an unfair dismissal to be reinstatement. This means, the FWC Member may order that you get your job back, together with continuity of service and lost pay. They will also take into consideration what you could have earned from the time you were dismissed to the hearing.

In most circumstances, reinstatement is not the desired option for you or the employer. if this is the case the FWC Member will make an order for compensation for lost wages.

Compensation is capped at 26 weeks wages and cannot include compensation for shock, distress or humiliation. In other words, if the outcome is an order of compensation, the purpose of this order is to compensate you for the wages you were likely to have earned but for the unfair dismissal.

Our Service & Legal Advice On Unfair Dismissal Claims

Our employment law team offers a pragmatic, empathetic and commercially driven service when dealing with employment related issues. We understand that being unfairly dismissed can be difficult and that you will need someone to tell your side of the story. We help you navigate the legal process to reached your desired outcome.

Our employment lawyers are experienced at keeping the legal issues in sharp focus. But we are also skilled at telling your version of events so that you feel heard and understood.

We understand the frustrations and challenges you are faced with after being unfairly dismissed. We will act quickly and give you a fair and reasonable assessment of your claim, the expected outcome and how to approach the dispute.

We provide complete transparency about the costs and steps associated with our service and making an unfair dismissal application. This way you remain in the driver’s seat and in control of your matter unlike other services.

If you are considering making an unfair dismissal application, or you have an upcoming Fair Work Conciliation, please contact us.

Our unfair dismissal lawyers are here to help call us on 1300 907 335 or completing an online enquiry form below.

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What are the eligibility requirements for making a Unfair Dismissal Claim?

You need to apply within 21 days of being dismissed.

For employees of large businesses:

  • You need to be a National System Employee;
  • You need to be employed for at least 6 months;
  • You need to be employed under a modern award and be earning under the high-income threshold.
  • You must have been dismissed from your employment.

For employees of small businesses:

  • You need to have at least 12 months of employment.
  • You need to be a National System Employee;
  • You need to be employed under a modern award (or enterprise bargaining agreement) and be earning under the high-income threshold.
  • You must have been dismissed from your employment.

If small business employers comply with the Small Business Unfair Dismissal Code, employees may not be able to bring an unfair dismissal claim. https://www.fairwork.gov.au/ending-employment/unfair-dismissal Small businesses employers have less than 15 employees.

The definition of Dismissal of Employment Under the Act

A person’s dismissal of Employment as defined under the Fair Work Act 2009 (Cth) (the Act) Section 386 is:

And alternatively, a person is NOT considered to be dismissed under the Act if:

and the employment has terminated at the end of the training arrangement; or

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

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