Unfair Dismissal – Not Covered By An Award

The National Employment Standards (NES) set a number of minimum employment standards. These set the bar of what is to be expected in an employment relationship, however many employees are not covered by an award or receive entitlements over the government’s set award.


This may cause doubt about the application of the unfair dismissal legislation, however Owen Hodge Lawyers can guide you successfully throughout the unfair dismissal application process. 


As our clients often learn, employees do have rights under the Fair Work Act even if they receive entitlements above the set award with regards to unfair dismissal claims.


What is Unfair Dismissal


Under section 385 of the Fair Work Act the definition of unfair dismissal is a person who is unfairly dismissed if Fair Work Australia is satisfied that:


  • The person has been dismissed; and
  • The dismissal was harsh, unjust or unreasonable; and
  • The dismissal was not consistent with the Small Business Fair Dismissal Code; and
  • The dismissal was not a case of genuine redundancy.


Most notably, this means employees are eligible to make applications of unfair dismissal if their dismissal was harsh, unjust or unreasonable, or for an invalid reason, which Fair Work Australia (FWA) will determine. FWA will then be able to make a decision, guided by the individual circumstances and the legislation which sets the considerations, remedies and limits.


Protection provided by the Fair Work Act


Usually, applications need to be made within 14 days from dismissal, unless other special conditions exist. After the application is made the FWA can order a remedy if they are satisfied that (1) the person was protected from unfair dismissal at the time of being dismissed and (2) that the person has been unfairly dismissed.


Who is protected


Eligibility to make an unfair dismissal application to FWA requires the employee to have completed the minimum employment period of twelve months where the employer is a small business employer, or six months where the employer is not a small business employer.


Additionally, one or more of the following must apply for an employee to be protected under the Act:


  • An modern award covered the employee
  • An enterprise agreement or industrial agreement applied to the person
  • The person’s annual rate of earnings is under the high income threshold, which from 1 July 2011 is $118,100 and is to be indexed each year.


What is an unfair dismissal


Key considerations taken by Fair Work Australia when coming to their decisions is whether the dismissal was harsh, unjust or unreasonable, and whether there was an invalid reason. To dismiss an employee because of a valid reason is not enough and the employer must also follow fair procedures and give notice.


Orders that can be made by Fair Work Australia include;


  • Reinstatement, or
  • Payment of compensation (up to 26 weeks, max amount 36,900.00)


What if there is an individual employment agreement


It is not unusual for employees and employers to enter an agreement which forms the basis of the employment relationship. This could be the key element of a prospective unfair dismissal claim. An agreement can include terms about the termination of employment process and impose extra obligations on the employer. It is always advised to consider your workplace agreement when making an unfair dismissal claim and the lawyers at Owen Hodge Lawyers can give you individual advice on your application and assist you throughout the process to ensure its’ success. It is important to look at your employment agreement first!


Begin the application process now


You need to act fast as the legislation specifies that applications need to be commenced by 14 days after the unfair dismissal occurs. Owen Hodge Lawyers are able to assist you with your application and ensure your application holds merit when it is considered by Fair Work Australia. We urge you to call us now!


Owen Hodge Lawyers are the law firm of choice for employers and employees alike when it comes to unfair dismissal. We have a team of lawyers who practice in nothing else but unfair dismissal and can guide you through the process. If you have any questions, please contact Owen Hodge  Lawyers on 9570 7844.

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