If you’ve faced dismissal from your job, you may have the right to file an unfair dismissal claim under the Fair Work Act 2009 (Cth) (FW Act). To succeed, you must demonstrate that your termination was harsh, unjust, or unreasonable, and that your employer lacked a valid reason for ending your employment or did not follow a fair process.
When evaluating whether a dismissal was harsh, unjust, or unreasonable, the Fair Work Commission (FWC) considers various factors:
Valid Reason for Dismissal: The initial consideration is whether a legitimate reason justified your dismissal, such as poor performance or misconduct. Equally vital is whether you were properly informed of the grounds for your dismissal and given an opportunity to respond.
Prior Warnings: It’s essential to ascertain whether you received any prior warnings regarding unsatisfactory performance before your termination.
Support Person Presence: Another critical aspect is whether your employer unjustly denied your request to have a support person present during discussions regarding your dismissal.
Business Size and HR Resources: The size of your employer’s business and the presence or absence of a dedicated human resources team can significantly influence the procedures followed when terminating your employment.
Other Relevant Considerations: Furthermore, the Fair Work Commission (FWC) takes into account any other factors that may affect the fairness and legality of your dismissal.
Understanding these elements is essential to safeguard your rights and adhere to the regulations outlined in the FWC. To be considered a valid reason for dismissal, the reason must be sound, defensible or well founded. This means that it must be based on genuine concerns about your performance or conduct, rather than the reason being capricious or discriminatory.
Who can make an unfair dismissal claim?
You may be eligible to make an unfair dismissal claim if, at the time of your dismissal, you can satisfy two requirements:
- worked for your employer for more than six months (or 12 months for a small business); and
- covered by a Modern Award, an Enterprise Agreement or, your annual earnings are less than the high-income threshold. The high-income threshold is currently $162,000 and this figure is adjusted annually on 1 July. The threshold, therefore, is relevant only to you if you are award-free and no enterprise agreement applies to you.
If you are a casual employee, you can also make an unfair dismissal claim if:
- you have served the minimum employment period;
- your employment has been regular and systematic;
- have had reasonable expectations of continuing employment.
It’s advisable to seek legal advice if you are unsure whether you meet the criteria to make an unfair dismissal claim, or if you need assistance with the process.
Where Do I Make The Claim?
If you believe that you have been unfairly dismissed, you can make an application with the FWC within 21 days from the date of your dismissal. To make a claim, visit the FWC Unfair Dismissal website.
What Are The Potential Remedies For Unfair Dismissal?
If the FWC determines that your dismissal was unfair, it may grant one of two possible remedies:
- Reinstatement: FWC can order your employer to reinstate you to the position you previously held, or to another position with terms and conditions which are no less favourable; or
- Compensation: the FWC can order your employer to pay you compensation, which is capped at the lesser of six months of your pay, or half the high-income threshold (currently $162,000 as at the date of this article), whichever is lower.
How Do I Proceed To Make An Unfair Dismissal Claim?
If you believe that you have been unfairly dismissed, it is important to take action promptly, noting that there is a strict 21 day time limit to lodge an application for unfair dismissal with the FWC.
National Employment & Labour Lawyers have a dedicated team who can assist you with your unfair dismissal claims. We offer a free and confidential initial consultation, where we can discuss your situation and provide you with tailored advice. Get in touch with us today!
Related articles:
- Employees rights are protected by law in Australia, find out more in our article Employee Rights In Australia: What You Need To Know.
Disclaimer: The information contained in this article is of a general nature and is not intended to be relied upon as, nor to be a substitute for, specific legal or professional advice.
