Unfair Dismissal Law

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:

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

This article will provide you an insight on the eligibility criteria of an aggrieved person to claim unfair dismissal including information on award agreements, salary threshold, time-frame to lodge complaints, redundancy, unfair dismissal vs. unlawful dismissal, constructive dismissal, the process involved in unfair dismissal claims (including information on conciliation conferences) and how to choose an unfair dismissal lawyer.

Eligibility

You are eligible to make an unfair dismissal claim, if at the time of application:

(a) 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;
(b) you are covered by an enterprise agreement or an agreement-based transitional instrument; or
(c) your salary did not exceed the High Income Threshold, which is currently $129,300 per annum.

In order to make unfair dismissal claim, you have to also complete a minimum employment period of at least 6 months (or 12 months if your employer is a Small Business Employer who employs less than 15 employees).
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.

Redundancy

Redundancy under the National Employment Standards happens when an employer either:

(a) 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
(b) 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 regarding dismissal law under the general protections part of the act. General protection claims do not consider whether a dismissal was harsh, unjust or unreasonable, but instead consider whether the reason for the termination was unlawful.

Constructive Dismissal

At times you may still have rights to make an unfair dismissal claim even if you have resigned from your employment. This happens because of the conduct of the employer, you are left with no other choice but to resign from your employment. 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.

The Process

The Commission, where possible, 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:

(a) you have to send an unfair dismissal application to the Commission;
(b) 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);
(c) 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;
(d) 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;
(e) conciliation takes place with a Commission conciliator, usually over telephone in order to try to resolve the matter; and
(f) if unresolved at conciliation, the application will be determined by a member of the Commission at a formal conference or hearing.

Conciliation

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 to the Commission you want to be considered at the conciliation.

Hearings and conferences

You and your employer will each receive written notification from the Commission of any conferences or hearings to be held on the unfair dismissal application if the same 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 and 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:

(a) you are not unfairly dismissed;
(b) the application was lodged with the Commission outside of the prescribed time limits;
(c) you are not covered by the unfair dismissal laws or not eligible to make an application; and/or
(d) the application is frivolous, vexatious or has no reasonable prospects of success.

Possible outcomes/remedies

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, or payment of compensation to you if satisfied that a reinstatement will be inappropriate.

Choosing an Unfair Dismissal Lawyer

If you believe you have been subject to unfair dismissal then it is only very natural to feel stressed and traumatised by the experience. In such a time of upheaval choosing an unfair dismissal and lawyer to represent you can be stressful. Some of the things to look for in choosing an unfair dismissal lawyer would include checking whether the firm specialises in unfair dismissal claims, constructive dismissal claims. Do its lawyers carry any applicable accreditation in unfair dismissal matters etc. You would also want to speak to a firm who engages with you in easily understood terms and does not bombard you with legal terminology.

At Owen Hodge Lawyers we can help you to have a clear understanding of the entire unfair dismissal procedure through what is a challenging time for you 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.

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