The Fair Work Act 2009 (Cth) (Fair Work Act) establishes the framework for unfair dismissal claims, ensuring that certain employees are not unfairly or unlawfully terminated from their jobs. In Australia, employers are required to adhere to strict regulations when it comes to dismissing employees. Unfair dismissal claims can be costly, time-consuming, and damaging to a company’s reputation.
Understanding Unfair Dismissal
Unfair dismissal refers to the termination of employment that is considered harsh (disproportionate outcome compared to the gravity of the misconduct), unjust (not guilty of the alleged misconduct or wrongdoing), or unreasonable (insufficient evidence supports the conclusion that led to dismissal), and the dismissal was not a genuine redundancy (genuine redundancy means certain job performance is no longer required in the business), as well as when a small business failed to dismiss an employee in accordance with the Small Business Fair Dismissal Code.
If your resignation was forced in response to conduct by your employer, which gave you no reasonable choice but to resign, you may also be considered as being dismissed by your employer.
To make a successful unfair dismissal claim, you must meet specific criteria:
- You must be an employee covered by the Fair Work Act and a modern award or an enterprise agreement.
- You must have completed a minimum period of continuous employment with your employer. Generally, this means working for the same employer for at least six months (or 12 months for small business employers with fewer than 15 employees).
- You must earn less than a high-income threshold, which is $167,500.00 per year as of 1 July 2023.
The Unfair Dismissal Claim Process
If you believe you have been unfairly dismissed, the following is a step-by-step guide on how to make a claim:
- Seek advice
Before proceeding with a claim, it is advisable to seek legal advice, as it can help you understand your rights and assess the strength of your case.
- Contact your employer
Talk to your employer or HR department about your concerns. It is possible that your dismissal was due to a misunderstanding or mistake that can be resolved informally.
- Time limit
You must lodge your unfair dismissal claim within 21 days of your dismissal taking effect. Missing this deadline can significantly affect your case.
- Application
To make a formal claim, you must complete and lodge an Application for Unfair Dismissal Remedy form available from the Fair Work Commission (FWC) website. This form requires you to provide details about your employment, the circumstances of your dismissal, and why you believe it was unfair.
- Conciliation
After receiving your application, the FWC will notify your employer and schedule a conciliation conference. The purpose of conciliation is to encourage both parties to reach an agreement. A conciliator will assist in discussions.
- Formal Hearing
If conciliation fails to resolve the issue, your case will proceed to a formal hearing. At this stage, you may be required to provide evidence and witnesses to support your claim. The FWC will make a legally binding decision based on the merits of your case.
- Outcome
If the FWC determines that your dismissal was unfair, they can order your reinstatement, compensation, or other appropriate remedies. However, it is important to note that not all unfair dismissal claims result in a successful outcome. The maximum compensation for an unfair dismissal claim is indexed annually, which is $83,750 from 1 July 2023. This compensation cap is the lesser of 26 weeks’ worth of wages or half of the high-income threshold at the time of the dismissal.
- Appeal
Both you and your employer have the right to appeal the FWC’s decision. This process involves a review of the initial decision by a Full Bench of the FWC.
If you believe you have been unfairly dismissed, please contact The IP House Lawyers for legal advice and assistance in navigating this complex area of employment law, which updates frequently. Our experienced employment lawyers will advise you on the laws and regulations, options, and recommendations for the best course of action, as well as acting for you during the process.
For any further information or queries on the above content, please contact us.
The Author
Jean Kallmyr | Lawyer, The IP House Lawyers | t: 0435 799 831 | e: admin@theiphouse.com.au
Key Contact
Claire Darby | Managing Director/Lawyer, The IP House Lawyers | t: 0412 998 951 | e: claire@theiphouse.com.au
Disclaimer
The information and contents of this publication do not constitute any legal or financial advice. This publication is intended only for reference purposes for The IP House Lawyers’ clients and prospective clients.
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