If your termination of employment was unjust or disingenuous, you may be able to make a claim for compensation. If you think you have been dismissed unfairly, our unfair dismissal lawyers can help.
What is unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in an unjust, harsh or unreasonable manner.
Do I have grounds for unfair dismissal?
According to Section 385 of the Fair Work Act 2009 (“the Act”), a person has been unfairly dismissed if the Fair Work Commission (“the Commission”) is satisfied that:
- the person has been dismissed;
- the dismissal was harsh, unjust or unreasonable;
- the dismissal was not consistent with the Small Business Fair Dismissal Code; and
- the dismissal was not a case of genuine redundancy.
How do you prove unfair dismissal?
In addition to satisfying the above criteria, the ex-employee must also prove:
- Your employment was terminated at the initiative of your employer
- The employer did not have a valid reason (relating to your conduct or capacity); or
- Did not follow a fair procedure in terminating your employment, for example:
- You were not given opportunity to respond/improve your performance; or
- You had not been previously warned of unsatisfactory performance
Can I sue for unfair dismissal?
You are eligible to make an unfair dismissal claim if at the time of application:
- You are covered by a modern award or a pre-modern award instrument, such as a Federal Award, a State Reference Transitional Award or a Notional Agreement Preserving State Award;
- You are covered by an enterprise agreement or an agreement-based transitional instrument; or
- Your salary did not exceed the High Income Threshold, which is currently $129,300 per annum.
In order to make an unfair dismissal claim, you also have to have completed a minimum employment period of at least 6 months. This is 12 months if your employer is a small business employer who employs less than 15 employees.
Learn more from our small business lawyers.
Unfair dismissal time limit
You have to make an application to the Commission within 21 days after the dismissal takes place. The Commission may accept a late application but only in exceptional circumstances. It’s best to seek advice from an unfair dismissal lawyer in these instances.
The claims process for unfair dismissal
The Commission seeks to resolve any unfair dismissal applications by agreement.
You can make an application for unfair dismissal remedy through Form F2—Application for unfair dismissal remedy.
The key steps in the unfair dismissal application process are:
1. Submit your claim
You have to send an unfair dismissal application to the Commission.
2. The Commission contacts your employer
The Commission will send a copy of the application to your employer, information about the process to be followed and an employer response form (Form F3).
3. Written notice
The Commission will then send you and your employer a written notice with the date and time of the conciliation, which is also known as Notice of Listing.
4. Employer response
Your employer is required to respond to the application and submit any jurisdictional objections, and send their response and jurisdictional objections to you and to the Commission.
Conciliation takes place with a Commission conciliator, usually over telephone in order to try to resolve the matter.
Conciliation is an informal, private and generally confidential process where a Commission conciliator will assist you and your employer to resolve an unfair dismissal application by agreement. The conciliator is independent and will not support anyone but will work to bring the parties to an agreed resolution.
You must review what you want to say at the conciliation about the unfair dismissal application prior to the conciliation. If possible, send any documentary material you want to be considered to the Commission.
6. Formal conference if required
If unresolved at conciliation, the application will be determined by a member of the Commission at a formal conference or hearing with your unfair dismissal lawyer.
You and your employer will each receive written notification from the Commission of any conferences or hearings to be held on the unfair dismissal case if it has not been withdrawn or settled at or before the conciliation.
The notification will include the time, date and location of any such conference or hearing.
You may apply for an adjournment of the conference or hearing and it should be given in writing. You should provide full reasons for seeking an adjournment. Adjournment applications will only be granted on substantial grounds.
Objections to unfair dismissal applications
Your employer can object to your unfair dismissal application on the following basis:
- You are not unfairly dismissed;
- The application was lodged with the Commission outside of the prescribed time limits;
- You are not covered by the unfair dismissal laws or not eligible to make an application; and/or
- The application is frivolous, vexatious or has no reasonable prospects of success.
What is fair compensation for unfair dismissal?
Generally, there are two possible outcomes for unfair dismissal claims: reinstatement or compensation.
If the Commission is satisfied that you are unfairly dismissed, then it may order for your reinstatement. If a reinstatement is deemed inappropriate, then you will receive a payment of compensation.
Redundancy vs unfair dismissal
Redundancy under the National Employment Standards happens when an employer either:
- Decides that they no longer require an employee’s job to be done by anyone and terminates their employment (except in cases of ordinary and customary turnover of labour); or
- Becomes insolvent or bankrupt.
Unfair Dismissal vs unlawful dismissal
If you are not eligible to make an unfair dismissal claim, you may still make an application under the general protections part of the Act. General protection claims do not consider whether a dismissal was harsh, unjust or unreasonable; instead, they consider whether the reason for the termination was unlawful.
Constructive dismissal vs unfair dismissal
At times, you may still have rights to make an unfair dismissal claim even if you have resigned from your employment and there’s therefore no breach of employment contract. This happens because of the conduct of the employer, leaving you with no other choice but to resign.
Termination in this form is generally known as constructive dismissal. For example, constructive dismissal occurs where a person is told that unless they resign immediately, their employment will be terminated.
Learn more: unfair and constructive dismissal
Do I need a solicitor for unfair dismissal?
If you believe you have been subject to unfair dismissal, then it is only natural to feel stressed and traumatised by the experience. In such a time of upheaval, choosing an unfair dismissal lawyer to represent you is the best way to ensure you get the compensation you deserve.
Speak to Owen Hodge’s unfair dismissal lawyers
At Owen Hodge Lawyers, our employment lawyers can help you understand the entire unfair dismissal procedure and get the best outcome for you from any proceedings. Call our Sydney-based unfair dismissal lawyers on 1800 770 780 today to find the right unfair dismissal solicitor to assess your claim.