Was your dismissal unfair?
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 employees of a small business) you may be eligible to make an unfair dismissal claim in the Fair Work 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.
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 that 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.
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. 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 $158,500 to make an unfair dismissal application.
If you think you have been unfairly dismissed, it is important to obtain legal advice 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. A 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.
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 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.
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 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 $158,500 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.
Contact us today to arrange a no-obligation confidential discussion with one of our experienced lawyers.
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Unfair redundancy
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.
Constructive dismissal
Generally, we think of dismissal as a person’s employment having been terminated at the employer’s initiative, but a 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:
To claim constructive dismissal, the employee must establish that they had no option but to resign, which can be difficult. If you feel that you have no other option but to resign, you should seek legal advice immediately, prior to tendering your resignation. 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.
