Updated 2020 advice from an Unfair Dismissal Lawyer

What is unfair dismissal?

The Fair Work Act establishes protection from unfair or wrongful dismissal. The protection from unfair dismissal does not apply to all employees and there are a number of criteria that must be satisfied in order to make a claim that the termination of your employment was unfair. 

Put simply, an unfair dismissal is one found by the Fair Work Commission to be harsh, unjust or unreasonable. These are very wide concepts and the Fair Work Commission can take into account a number of factors in answering the question as to whether the termination of your employment was unfair. It is why the jurisdiction is often referred to as being at large. 

 

How do you fight unfair dismissal?

To make a claim that the termination of your employment constitutes an unfair dismissal, the first thing you need to do is check whether you are eligible to make a claim. If you are, then you must lodge an application with the Fair Work Commission within 21 days of the termination taking place. This is a strict time limit and extensions are rarely granted. There is a filing fee for making an application to the Fair Work Commission. Once the application is filed, the Fair Work Commission will ask your employer to respond to your allegation that you suffered an unfair dismissal and will then convene a telephone conciliation conference where the parties are encouraged to resolve their differences amicably. If that is not possible, the case will be referred to a Commission member who will decide whether the dismissal was harsh, unjust and/or unreasonable. 

 

What do you get for unfair dismissal?

If you are successful in an unfair dismissal claim, there are a few options available to the Fair Work Commission. It can reinstate you in your employment. It can also make an order for back pay if it decides to reinstate you. It can order that you be employed in a different position. 

If it decides that reinstatement or re-employment are not appropriate, the Fair Work Commission can make a decision to award you compensation. There are strict limits on the amount of compensation awarded and how it is calculated. For example, you do not get damages for pain and suffering. 

 

Can I claim unfair dismissal during probation?

In order to be protected from unfair dismissal, you must have served a qualifying period of employment. This is referred to in the Fair Work Act as the minimum employment period. The minimum employment period is six months, or in the case of small business employers 12 months. A small business employer is defined as one who employs fewer than 15 employees. 

 

Can I be dismissed without warning?

Yes, in cases of serious misconduct. Such cases might include situations where theft or workplace assault is involved. In other less serious cases, ordinarily, there is an expectation that you are given a warning about any concerns around your poor performance or conduct prior to dismissal. However, there is not a fixed rule. 

The myth that your employer must give you three warnings before terminating you is untrue. In cases where employees are dismissed without prior warning (especially in cases involving alleged poor performance), there is a reasonable case to be made that the dismissal was unfair. 

 

Is there a difference between unfair dismissal and wrongful dismissal?

Under Australian law, there is no such thing as wrongful dismissal, but this is a commonly used colloquial term for the termination in breach of legal and general protections. Wrongful dismissal comes under common law jurisdictions.

Unfair dismissal is dismissal on harsh, unjust or unreasonable grounds, the validity of which can be disputed. 

In both of these cases, the allegations need to be put to you. You are required to have a fair opportunity to respond, and the employer is required to take your response into account.

 

Who cannot claim unfair dismissal?

There are eligibility thresholds for unfair dismissal claims. Permanent full-time and permanent part-time employers, as well as casuals with regular shifts and expectations of ongoing work, are eligible if they have worked for a small business for at least 12 months and a larger business for at least six months.

Those who cannot claim unfair dismissal include:

-   Employees on fixed-term contracts that have ended

-   Workers on apprenticeships and training schemes

-   Employees who earn more than the high-income threshold (updated annually, most recently $153,600 excluding superannuation)

-   Those covered by the modern award

-   Workers who have been made genuinely redundant

 

Can a contractor claim unfair dismissal?

While contractors are not eligible to bring unfair dismissal claims, it is common for workers to have been categorised as a contractor when they should have been categorised as an employee. To work out if this applies to you, look at your employment criteria – if your work is under control of one person, low skilled, you don’t get to set your terms, conditions or hours and you don’t work for other parties, it is likely that you are under a sham contracting agreement and should be classified as an employee.

If this is the case, contact your lawyer to discuss your options, and what you can say in your court case to prove that you are an employee.

 

When should I hire an employment lawyer?

You should consult an employment or workplace lawyer for advice on employment law matters, such as being called into a meeting that might affect your employment. You should engage an employment lawyer at the earliest stage possible so you can get guidance on your case and to take the appropriate steps to protect your position.

 

What to do if this information applies to you

At Gordon Legal, we understand that unfair dismissal is a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal on (03) 9603 3000 or our Geelong office on (03) 5225 1600 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone or via video conferencing platforms.

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