Employment Law: What to Do After an Unfair DismissalMay 31, 2021
Employment laws in Australia have protections to ensure that all types of workers across all industries are treated fairly. All employers must reinforce a safe and healthy work environment, pay fair wages, and comply with many other laws and regulations when dealing with workers.
There are many legal and fair ways to sever an employee-employer relationship. When it comes to dismissal from a place of employment, workers have inalienable rights. If you feel that you have been dismissed unfairly, you can take several steps for reversal or file a claim against your former employer.
What is Unfair Dismissal?
Fair Work Commission (FWC) is Australia’s national workplace relations tribunal. Their guide states that workplace dismissal can be considered unfair if:
- Your dismissal was harsh, unjust, or unreasonable
- Your dismissal does not apply as a case of genuine redundancy
- If you were employed by a small business (defined as a business with fewer than 15 full-time, part-time and regular casual employees), your dismissal was not in line with the Small Business Fair Dismissal Code
In terms of legal frameworks, a dismissal can be harsh, unjust, or unreasonable if it qualifies under the following circumstances:
Harsh – The penalty of dismissal is disproportionate to the misconduct committed or if the employee will face difficult financial consequences after their dismissal.
Unjust – If the employee is dismissed for misconduct, but they did not commit the misconduct at all.
Unreasonable – If the employee is dismissed due to an inference or conclusion that is not based on fact.
An employer performs a harsh, unjust, or unreasonable dismissal if:
- The employee was not informed of the reason for their dismissal.
- The employee was not given a chance to respond to the reason for their dismissal.
- The employee was not allowed to have a support person to assist during the discussion of their dismissal.
- The employee was dismissed due to consistent unsatisfactory performance, but were not previously warned about this status before their dismissal.
- There was an unclear reason for the dismissal related to the employee’s capacity or conduct.
Filing a Claim Through the Fair Work Commission
If your employer unfairly dismissed or forced you to resign because of something your employer did, you can apply to the FWC for reinstatement or compensation. To file an application, you must:
- File your application within 21 days of your dismissal
- Have coverage from the national workplace relations system
- Meet eligibility criteria (full-time employee for at least six months, earnings below $153,600 per year, or higher earnings covered by an enterprise agreement)
The unfair dismissal claim process will proceed as follows:
1. Fill up the correct form and pay a fee for your application to the Fair Work Commission.
2. The FWC will send a copy to your former employer. They will be given a timeframe wherein they can respond to your application. An employer can lodge a jurisdictional objection if they believe the case does not fall under the FWC’s jurisdiction. If this objection is upheld, the unfair dismissal claim will be dismissed.
3. FWC staff will set a time and date for a conciliation conference. This is a mediating step to help both parties resolve the dispute without having to set a formal hearing.
4. If the issue cannot be resolved during the conciliation conference, your application will be sent to a Fair Work Commission Member for a hearing. Under the Fair Work Act 2009, the Commission Member is limited to ordering either reinstatement or compensation (26 weeks’ pay or less, no compensation for emotional damages).
There are legal and fair ways for employers to dismiss employees if they have committed misconduct or they are underperforming. Employment laws and institutions in Australia protect workers who are victims of unfair dismissal. They have the option of filing a claim with the FWC and working with employment lawyers to help them with the filing process.
If you need unfair dismissal lawyers in Perth, contact Workclaims Australia immediately. We are equipped to deal with a range of national workplace relations issues. Don’t be one of the thousands of Australians who miss their entitlements, and let us help you file your claim as soon as possible.