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Do you have a legitimate case for unfair dismissal?

Written by: Laura Costello (Bachelor of Law/International Relations at Latrobe University).

In Australia, unfair dismissal laws and regulations protect employees from being dismissed on prejudicial or unreasonable grounds.

What is an unfair dismissal?

An unfair dismissal occurs where the Fair Work Commission (the body that deals with cases of unfair dismissals),determines that;

  • the dismissal was harsh, unjust or unreasonable
  • the dismissal was not a case of genuine redundancy (the employer no longer required the person’s role to be performed by anyone)
  • the dismissal was not consistent with the Small Business Fair Dismissal Code. (A small business is a business that employs fewer than 15 employees).

By bringing an unfair dismissal application to the Commission you begin a legal process that can help settle the dispute between yourself and your former employer. Whilst is preferable to settle the matter by agreement, the Commision can step in to make an order if an agreement cannot be reached.

What constitutes a harsh, unjust or unreasonable dismissal

The Fair Work Commission must take the following into account;

  • whether there was a valid reason for the dismissal
  • whether the person was given an opportunity to respond to the reason after being notified
  • whether the person had been warned if the dismissal related to unsatisfactory performance
  • Whether the person could have been reasonably  re-employed after being held redundant elsewhere within the company or an associated entity of the company.

Who is eligible to make an application for unfair dismissal?

To apply for a remedy in regard to unfair dismissal, an employee must be covered by the national unfair dismissal laws and also have completed the minimum period of employment. In a small business, the minimum period is one year, and in a larger business of 15 or more employees this is six months. You will not be eligible to make an application if you are;

  • a casual employee unless you had a reasonable expectation that your job would continue
  • a contractor
  • earn $129,300 or more.

The Small Business Fair Dismissal Code

You will have a legitimate case for unfair dismissal if your employer has failed to adhere to this code. The code provides that It is fair for an employer to dismiss an employee without warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Such conduct includes violence, theft and fraud.

In all other circumstances a small business employer must give valid reason for the dismissal, or risk being subject to an unfair dismissal claim. The employee must be warned verbally or in writing and give the employee a reasonable chance to rectify the problem. All small businesses are required to produce evidence of complying with the code if a former employee makes an unfair dismissal claim.

Are you within the time limitations for an unfair dismissal remedy application?

An unfair dismissal remedy application must be lodged within 21 days of the dismissal coming into effect. The Commission will only accept late applications in exceptional circumstances.

Lodging your application

When lodging an application for an unfair dismissal remedy, you will be assigned a case manager whose role is to assemble your file for the Commission. However, it is important to note that the case manager cannot assist you with preparing the application and cannot give you legal advice on how to submit your case and the likelihood of your case being successful. It is therefore advised that all applicants seek the advice of a lawyer to assist with the application process.

Remedies

If the Commission finds that you were unfairly dismiss, they may order the following remedies depending on the specific circumstances

  • reinstatement to the same or equivalent position
  • payment of lost wages
  • compensation instead of reinstatement into the same position

Author Bio: Laura Costello is in her third year of a Bachelor of Law/International Relations at Latrobe University. She is passionate about the law, the power of social media, and the ability to translate her knowledge of both common and complex legal topics to readers across a variety of mediums, in a way that is easy to understand.