UNFAIR DISMISSAL FAQ'S

Let’s work through it. Together.

We share some recent questions from workers, and our replies. They may help clarify your own situation. Names have been changed to protect privacy.

QUESTION

“I didn’t even know there was a problem with my performance and then Friday at 5pm they told me not to return the following week. I had already passed my 3-month probationary period by 2 weeks!”

Xavier, Victoria Park

ANSWER

“Doesn’t look good for you, Xavier. Under the Fair Work Act 2009 there is a requirement that in order to make an unfair dismissal claim, you must have served a minimum employment period of 6 months. Give me a call on 9301 0850 and we’ll confirm a few more details to double check there are no more avenues to explore.”

Patrick

QUESTION

“I lodged a claim myself online and it has progressed, but now I feel really awkward and embarrassed at the prospect of having to face my old employer. Is it too late for you to step in?”

Tina, Midland

ANSWER

“Hi Tina. If you need to go to a hearing, I can come with you and do all the talking, which will keep things professional and non-emotional. I will give you a call and find out what the facts of the matter are. If you are looking for reinstatement, it’s always better to be represented in case you say something you regret! I will need some more details but on face value, looks like we can help.”

Patrick

QUESTION

“I haven’t got a new job yet so the last thing I can afford are your lawyers’ fees. It is a shame as I have a strong case for compensation”

Jim, Bendigo

ANSWER

“We understand, Jim. In fact, we are not lawyers but industrial agents with legal knowledge. In any case, let’s meet up and see if we can work out a success fee so your cash flow is not tied up at this tough time. We have a very high success rate so I am happy to carry the risk!”

Patrick

QUESTION

“I got my roster at the factory and saw I had been changed to the night shifts. My employer told me if I was going to refuse the shifts there was no other hours they could give me. I had no choice but to leave and find another job. It wasn’t fair as I told them from Day One I could only work days. As a single parent, night shifts are not an option and I feel like they used this as an excuse to get rid of me. Is there anything I can do?”

Sharon, Brisbane

ANSWER

Hi Sharon. If you were dismissed as a result of resignation but in reality the resignation was because you had no reasonable other choice, it is possible that The Fair Work Act may consider this to be a constructive dismissal. In other words, eliciting a resignation from an employee will not necessarily avert a subsequent claim for unfair dismissal. Sounds like you might have a case, let’s have a chat.”

Patrick

QUESTION

“It has been 2 months since I was sacked, and after the initial shock and then the rush to apply for a new job, I have only just reflected on my dismissal. It definitely wasn’t right. Can you help me lodge a claim?”

Kirsten, Newcastle

ANSWER

“Unfortunately, not. The 21 day rule from the day your employment was terminated is very strict. It’s something that catches out a lot of people. Sorry Kirsten.”

Patrick

QUESTION

“Everyone I speak to thinks I was unfairly sacked but I have missed the 21 day period. Can’t I just say I was sick?”

Matt, North Adelaide

ANSWER

“Bad news, Matt. Although there are medical grounds for extensions, they are provided very rarely in genuine and exceptional cases. Having the flu, for example, is not going to cut it. Sorry.”

Patrick

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