If you have been dismissed within the last 21 days and were employed for a minimum employment period of six months (or 12 months for small business employees), you may be eligible to make an unfair dismissal claim in the Fair Work Commission. Unfair dismissal is a complex area of law but the lawyers at Jewell Hancock Employment Lawyers are here to help.
Unfair dismissal lawyers
What is unfair dismissal?
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.
Strict time limits apply to unfair dismissal applications, so contact us today to arrange a no-obligation confidential discussion with one of our experienced lawyers.
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If you think you have been unfairly dismissed, it is important to obtain legal advice as quickly as possible. There are several complexities to the unfair dismissal jurisdiction in the Fair Work Commission, and you only have one opportunity to pursue your claim. An experienced unfair dismissal lawyer will usually be able to provide you with advice and representation throughout the proceedings and ensure that you receive the best possible outcome in the circumstances.
Who can make an unfair dismissal claim?
Most employees who believe their dismissal was unfair or unreasonable can make a claim for unfair dismissal provided they meet the following criteria:
- they have completed the minimum period of employment, which is six months for a business with 15 or more employees or 12 months for a business with less than 15 employees;
- they have been dismissed within the last 21 days; and
- they earned less than the high income threshold at the time of dismissal OR their employment was covered by a modern award or enterprise agreement.
You are considered dismissed if your employment has been terminated at the initiative of your employer, or if you have resigned but were forced to do so in response to conduct or a course of conduct by your employer which gave you no reasonable other choices, also known as constructive dismissal.
How do I make an unfair dismissal claim?
The unfair dismissal process commences with the filing of an unfair dismissal application (also known as a Form F2) in the Fair Work Commission within 21 days of your dismissal. The time limit for unfair dismissal claims is strict and claims lodged out of time are only considered by the Commission in exceptional circumstances.
Once an unfair dismissal claim has been lodged your employer may object on the ground that the dismissal was a genuine redundancy, that the dismissal was compliant with the Small Business Fair Dismissal Code, that you were not actually dismissed or that you do not meet the minimum employment period.
The Fair Work Commission then convenes a conference between the parties to provide them with an opportunity to settle the dispute. If the parties cannot agree to settle the dispute, the Fair Work Commission issues directions to progress the matter to a final hearing before a member of the Commission.
If you are successful in your claim, you can ask to be reinstated to your former position or receive financial compensation for lost income. The Fair Work Act sets out criteria for determining how much compensation an employee can be awarded based on factors such as remuneration, efforts to mitigate loss and the effect of the order on the viability of the employer’s enterprise.
The lawyers at Jewell Hancock Employment Lawyers have brought hundreds of successful unfair dismissal claims over the last ten years. We can assist you at every stage of the Fair Work Commission process, from preparing the application to the conciliation conference or appearing for you at the final hearing.
If you have been dismissed within the last 21 days, were employed for at least six months, and earned less than $167,500 per annum (the high income threshold), you may also qualify for a free 30 minute consultation as well as our no-win no-fee service.
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In circumstances where a redundancy is not genuine, you may be eligible to file an unfair dismissal application in the Fair Work Commission to challenge your dismissal.
A redundancy may not be a case of genuine redundancy if your employer still requires your job to be performed (even if it has asserted otherwise), failed to properly consult with you about the redundancy, failed to consider suitable redeployment options for you or selected you for redundancy for a reason prohibited at law.
An employer may make a jurisdictional objection to an employee’s application for an unfair dismissal remedy if they believe that the employee’s dismissal was a case of genuine redundancy.
Generally, we think of dismissal as a person’s employment having been terminated at the employer’s initiative, but dismissal may also be unfair where the employee was forced to resign because of the conduct, or course of conduct, engaged in by the employer.
Constructive dismissal is the term used to describe what occurs when an employee resigns because of the conduct of their employer.
Examples of constructive dismissal situations include:
- Workplace bullying that is not addressed
- A material breach of your employment contract
- Underpayment of entitlements
- Serious safety concerns that are not addressed
To claim constructive dismissal, the employee must establish that they had no option but to end the employment relationship by resigning, which can be difficult. If you feel that you have no other option but to resign, you should seek legal advice immediately, prior to resigning. In order to take action for constructive dismissal, the employment must end in a careful and controlled way. Once the employment ends, you may be able to make a claim for breach of contract and/or an unfair dismissal claim in the Fair Work Commission.
Frequently asked questions
The number of employees in a business is determined by a simple head count of all permanent employees and regular and systematic casual employees. For example, a business would not be a small business employer if it had:
- 12 permanent employees (full or part-time), and
- 4 casual employees that regularly work full-time hours.
In this scenario, the employer would have a total of 16 employees and would not be considered a small business. As a result, the minimum employment period would be six months.
Conversely, a business would be a small business employer if it had:
- 12 permanent employees (full or part-time), and
- 4 casual employees who worked occasional shifts.
In this scenario, the employer would only be considered to have 12 employees and would therefore be considered a small business. As a result, the minimum employment period would be one year.
The employee that is being dismissed is also counted as an employee, as is any other employee who is being dismissed at the same time. Employees in associated entities are also counted.
When a small business dismisses an employee, the Fair Work Commission will consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. If the Fair Work Commission is satisfied that the Code has been complied with by the employer, then the dismissal will not ordinarily be found to be unfair.
It is up to the small business employer to prove that they have complied with the Small Business Fair Dismissal Code. To be consistent with the Code they must, among other things:
- Believe on reasonable grounds the employee’s conduct is serious enough to justify summary dismissal, or
- In circumstances of unsatisfactory performance, conduct or capacity, provide the employee with warning that failure to improve could result in dismissal.
The high income threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal under the Fair Work Act 2009.
If an employee is not covered by a modern award, or if an enterprise agreement does not apply to them, they must earn less than the high income threshold which is currently $167,500.
The unfair dismissal provisions of the Fair Work Act 2009 apply to employees of a national system employer. Whether an employer is a national system employer varies across the states and territories. In Victoria, all employees are covered by the national system except law enforcement officers and some executives in the public sector.
Casual employees are eligible to make an unfair dismissal application if they meet the same eligibility requirements of permanent employees, were employed on a regular and systematic basis and had a reasonable expectation of continuing their employment with their employer.
When calculating the amount of compensation to award in an unfair dismissal case there are several factors that the Fair Work Commission must take into consideration. Compensation is determined on a case-by-case basis but is capped at the lesser of:
- the total amount of remuneration received by the person, or to which the person was entitled to receive (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; or
- half the amount of the high income threshold before the dismissal
An experienced unfair dismissal lawyer will be able to give you guidance on reasonable expectations and outcomes for your circumstances.