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Unfair dismissal claims

24/11/2020

When someone is dismissed unfairly from their job, the first avenue that comes to mind is usually an unfair dismissal claim. In this article we look at the eligibility criteria to make an unfair dismissal claim, what an unfair dismissal claim actually is, the process involved in pursuing an unfair dismissal claim and the types of remedies that can be achieved.

 

Can I make an unfair dismissal claim?

A permanent employee can usually make an unfair dismissal claim if:

  • 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 $153,600 per annum at the time of dismissal OR their employment was covered by a modern award or enterprise agreement.

There are however a series of objections that an employer can make to an unfair dismissal claim. These include that the dismissal was by reason of genuine redundancy, that the dismissal was compliant with the Small Business Fair Dismissal Code or that the employee was not actually dismissed.

What is an unfair dismissal claim?

In essence, an unfair dismissal claim is an allegation by the 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 the employee’s performance or conduct or that dismissal was a disproportionate response.

A dismissal might also be harsh, unjust or unreasonable if the employer did not follow a fair process when effecting the dismissal. For example, the employer may have failed to properly notify the employee of the proposed reasons for the dismissal or may have denied the employee a reasonable opportunity to respond before the decision to dismiss had been made.

What is the process in an unfair dismissal claim?

An employee can pursue an unfair dismissal claim by filing an application with the Fair Work Commission within 21 days of the dismissal taking effect. The employer will then need to file a response to the application outlining why they believe the dismissal was not unfair.

Once these documents have been filed, the Fair Work Commission will convene a conciliation conference, usually by telephone, to provide the parties with an opportunity to resolve the dispute by agreement. If the dispute cannot be resolved by agreement, it will then be listed for a hearing before a member of the Fair Work Commission where witness evidence will be heard, legal submissions will be made and a decision will ultimately be issued.

What remedies are available?

Reinstatement is the primary remedy in unfair dismissal claims but is rarely ordered. Instead, a payment of compensation for lost income in lieu of reinstatement is the usual remedy ordered. The Fair Work Commission cannot order compensation for pain and suffering and usually cannot order that the other party pay your legal costs, except in very exceptional circumstances.

What should I do if I have been unfairly dismissed?

If you have been 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 course of the proceedings and ensure that you receive the best possible outcome in the circumstances.

 

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.