Navigating Unfair Dismissals in Australia: Your GuideAugust 14, 2023
Losing your job is a tough experience, but it can be even more devastating if you feel you were unfairly dismissed. Fortunately, Australian law provides workers with some protections in these situations. However, navigating the legal system can be challenging, especially if you’re unfamiliar with the process. In this comprehensive guide, we’ll explore everything you need to know about unfair dismissals in Australia, from what constitutes an unfair dismissal to the steps you can take to seek justice. We’ll also cover the various legal remedies available to you, as well as tips for finding the right legal representation. Whether you’re currently dealing with an unfair dismissal or simply want to be prepared for the worst, this guide is an essential resource for anyone who wants to protect their rights in the Australian workplace.
Understanding the Fair Work Act 2009
The Fair Work Act 2009 provides the framework for employment law in Australia. It sets out the National Minimum Wage and the National Employment Standards (NES) which are the 11 minimum entitlements that must be provided to all employees in the national workplace relations system. Other workplace instruments such as employment contracts, enterprise agreements and awards must include the minimum standards.
It also establishes the Fair Work Commission (FWC), which is responsible for resolving disputes and making decisions about employment-related matters. One of the key provisions of the Fair Work Act is the protection against unfair dismissal. This protection applies to most Australian employees, including casuals who have been employed for more than 12 months. However, certain employees are excluded, such as high-income earners and employees of small businesses with fewer than 15 employees.
To be eligible for protection against unfair dismissal, the employee must have been terminated by their employer, and the termination must have been harsh, unjust, or unreasonable. The employee must also have been employed for at least six months (or 12 months for a small business employee) before the termination.
What makes a Dismissal “Unfair”?
A dismissal must be proven to be harsh, unjust, or unreasonable to be considered unfair.
Some examples include terminating an employee due to poor performance without giving them the chance to improve, firing an employee for bad behaviour they are not guilty of or without conducting a thorough investigation. Sometimes a dismissal can be considered unfair even if the employer had a valid reason for dismissal but did not afford the employee procedural fairness during the termination process.
In some cases, an employee may feel they have no other choice but to resign due to their employer’s behaviour, this is called a forced resignation or constructive dismissal. Reduction in pay, unreasonable demotion, bullying or sexual harassment or threatening to fire an employee if they do not quit can be examples of forced resignation.
Time Limits for Making an Unfair Dismissal Claim
If you believe you have been unfairly dismissed, it’s important to act quickly. There are strict time limits for making an unfair dismissal claim, and if you miss these deadlines, you may lose your right to seek compensation.
The time limit for making an unfair dismissal claim is 21 days from the date of the termination. However, this time limit can be extended in certain circumstances, such as if the employee was unable to make a claim due to illness or other reasonable cause. Utilise our “Time is Running Out” feature on the homepage of workclaimsaustralia.com to conveniently calculate the remaining days you have to file an unfair dismissal claim.
Preparing for an Unfair Dismissal Claim
If you’re considering making an unfair dismissal claim, it’s important to gather as much evidence as possible to support your case. This might include pay slips, employment contracts, performance reviews, and any correspondence with your employer.
It’s also a good idea to seek legal advice to ensure you understand your rights and obligations under the Fair Work Act. A Industrial Advocate can help you prepare your case and provide guidance on the best course of action.
Going to the Fair Work Commission
To make an unfair dismissal claim, you must submit an application (we submit the application on your behalf) to the Fair Work Commission (FWC). The application must be submitted within the 21-day time limit and must include details of the termination and the reasons why you believe it was unfair.
Once the FWC receives your application, they will notify your employer and provide them with an opportunity to respond. The FWC will then also hold a conciliation conference to try and resolve the dispute without the need for a formal hearing.
If the dispute cannot be resolved through conciliation, the matter will proceed to a formal hearing. The FWC will consider all the evidence presented by both parties and decide about whether the termination was unfair. If the FWC finds in your favour, they may order your employer to reinstate you, compensate you, or take other appropriate action.
Possible Outcomes of an Unfair Dismissal Claim
If the FWC finds that you were unfairly dismissed, there are several possible outcomes. The FWC may order your employer to reinstate you to your former position or to a similar position within the company. If reinstatement is not possible, the FWC may order your employer to pay you compensation.
The amount of compensation will depend on a variety of factors, including your length of service, your salary, and your future job prospects. The FWC may also order your employer to pay any lost wages, benefits, or entitlements that you would have received if you had not been unfairly dismissed.
Legal Representation for Unfair Dismissal Claims
While it’s possible to represent yourself in an unfair dismissal claim, it’s generally recommended to seek legal representation. An Industrial Advocate can help you navigate the legal system and ensure that your rights are protected throughout the process. They can also provide advice on the strength of your case and the potential outcomes of your claim.
When choosing an Industrial Advocate like Work Claims Australia, it’s important to find someone with experience in employment law and unfair dismissal claims. You should also consider their communication style, their fees, and their track record of success.
Being unfairly dismissed can be a traumatic experience, but it’s important to remember that you have legal rights and protections. If you believe you have been unfairly dismissed, it’s important to act quickly and seek legal advice. By understanding the process and your options, you can take steps to protect your rights and seek justice.
Remember, each case is unique, and the outcome of an unfair dismissal claim will depend on the specific circumstances. However, by following the steps outlined in this guide, you can be better prepared to navigate the legal system and seek the best possible outcome for your situation.