1. Have you been dismissed from employment?
If you have been dismissed you may have a claim against your employer, if your employer has breached your contract of employment or broken the law in dismissing you.
If your employer has broken the law in dismissing you, you may be able to make a claim under the Fair Work Act 2009 (Cth).
2. Am I eligible to make an unfair dismissal claim?
In order to make a claim you must fall within the scope of the Fair Work Act 2009 (Cth) which means that you must:
- Be covered by a modern award;
- Be subject to an enterprise agreement; or
- Have a salary that does not exceed the maximum income threshold (currently $123,300.00).
You must also be an employee who has been employed for more than 6 months, or more than 12 months if your employer has fewer than 15 employees.
Our lawyers can assist you in determining whether you are a national system employee. We can also assess whether your employment is covered by a modern award or under the maximum income threshold as a result of your salary package structure.
If, at the time you were dismissed, your employee employed fewer than 15 people (including yourself) then the rules governing unfair dismissal are different. Your employer must have complied with the Small Business Fair Dismissal Code. If the Small Business Fair Dismissal Code has been complied with, you are excluded from making an unfair dismissal claim.
If your employer claims you were dismissed because of redundancy and Fair Work Australia find your dismissal was a case of genuine redundancy, you are not able to bring a claim for unfair dismissal. A person’s dismissal was not a case of genuine redundancy if it would have been reasonable for you person to be redeployed within the employer’s business.
It is a case of genuine redundancy if:
- Your employer no longer required your job to be performed because of operational changes; and
- Your employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
These exclusions are complicated by any periods of casual employment as well as the specific requirements placed on employers by the Fair Work System.
3. What if I resigned from employment?
If you have been forced to resign, it may still be considered a dismissal. This situation is commonly known as constructive dismissal. An unfair dismissal can include a situation where a person has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. It is not advisable to resign from employment prior to speaking with an unfair dismissal lawyer as the impact of your resignation will have an effect on your unfair dismissal claim.
4. Don’t delay; strict time limits apply to FWA matters.
An employee has only 21 days after the date of the dismissal to make a claim for unfair dismissal. Only in very exceptional circumstances can this time be extended.
5. Is my dismissal unfair?
The Fair Work Act 2009 (Cth) lays down the considerations in deciding if a dismissal was unfair. Fair Work Australia will determine:
- whether there was a valid reason for the dismissal;
- whether you were notified of that reason;
- whether you were able to respond to the reasons given for your dismissal;
- Whether your employer was unreasonable in refusing you a support person;
- If your dismissal related to poor performance, whether you had received previous warnings about this;
- The impact of the size of the business in carrying out the dismissal;
- Whether your employer had human resources support in carrying out the dismissal; and
- Any other matters that Fair Work Australia considers relevant.
6. What if my claim is successful?
If your unfair dismissal claim is successful you may be reinstated to your job, or awarded compensation not exceeding 26 weeks pay.
In making an award of compensation for unfair dismissal, Fair Work Australia will consider the circumstances of the dismissal, including any contribution you may have had to your own dismissal and any success in returning to the workforce.
There is no remedy available for shock, distress or humiliation caused to you by the unfair dismissal. Fair Work Australia will also consider any previous payments provided to the employee.
7. What if my claim is unsuccessful?
If your unfair dismissal claim is unsuccessful, you will not ordinarily suffer any adverse consequence in relation to the employer’s legal costs of defending the application. In some extreme and unlikely circumstances, costs have been award where the application was frivolous, vexatious or made without reasonable cause or had no reasonable prospect of success.
8. What is the difference between unfair dismissal and unlawful dismissal?
Employees who are ineligible to make an unfair dismissal claim may be able to make an unlawful dismissal claim which otherwise known as a general protection claim. Unlawful termination and 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. An unlawful termination or general protections claim must be made within 60 days from the date of termination.
Contact Affinity Lawyers on 07 5630 6888 should you have any queries or require any assistance with an employment law matter.