An unfair dismissal claim is an allegation by an employee that their dismissal was harsh, unjust or unreasonable. This might be the case if there was no valid reason for the dismissal that related to performance or conduct or if the dismissal was a disproportionate response.
A dismissal might also be harsh, unjust or unreasonable if your employer did not follow a fair process when effecting the dismissal. For example, your employer may have failed to properly notify you of the proposed reasons for the dismissal or may have denied you a reasonable opportunity to respond before the decision to dismiss had been made.
Even in cases of serious misconduct or unsatisfactory performance, the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because it was a disproportionate response.
An employer is usually able to rely on a clear resignation given by an employee, even if it was given while the employee was feeling some amount of pressure.
However, if the resignation was given under extreme pressure and the employee seeks to withdraw the resignation immediately afterwards, special circumstances may arise. The employer may be under an obligation to allow a reasonable period of time for the resignation to be withdrawn or to confirm the resignation if there is some uncertainty about the circumstances in which it was given.
If you feel that your employer’s conduct has left you no other option but to resign, you should seek legal assistance immediately.
In order to take action for constructive dismissal, the employment relationship must end in a careful and controlled way. Once the employment ends, you may be able to make a claim for a significant breach of employment contract and/or an unfair dismissal claim under the Fair Work Act.
If you can establish that you were forced to resign from your employment, you may be eligible to make an unfair dismissal claim or general protections application to the Fair Work Commission. It might also give rise to certain common law rights and entitlements under the terms of your employment contract.
An unfair dismissal claim is an allegation by an employee that their dismissal was harsh, unjust or unreasonable. In instances of constructive dismissal, the employee would be alleging they were left with no other option than to resign due to the harsh, unjust and unreasonable conduct of their employer. Under the terms of the Fair Work Act, a high income threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal laws. If you are not covered by a modern award, or if an enterprise agreement does not apply to you, your annual income must be less than $183,100 to make an unfair dismissal application.
If you think you have been unfairly dismissed by way of constructive dismissal, it is important to obtain legal assistance as quickly as possible. There are a number of complexities to the unfair dismissal jurisdiction in the Fair Work Commission, and you only have one opportunity to pursue your claim. Constructive dismissal cases can be difficult for an employee to establish so seeking professional advice is recommended.
How can we help?
When a constructive dismissal arises, call the lawyers at Jewell Hancock Employment Lawyers. We can provide professional advice and legal assistance in bringing your employment to an end in the correct way and help formulate a claim to recover any lost income.
