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Published: 05 December 2017
Author: Mark Comito

Unfair dismissal: who can sue and what to do?

You can sue for unfair dismissal generally if you are an award employee. If you're not an employee covered by an award, then you generally have to receive, or have an income, of less than $142,000 and you have to establish that the termination of your employment is not due to a genuine redundancy, or not because you are on a fixed term contract.

These are some of the main exclusions that would prevent you from filing an unfair dismissal.

To be successful with an unfair dismissal claim, you generally have to establish that there's no valid reason for the termination of your employment, and that the termination is harsh, unjust or unreasonable, taking into account a number of factors in the Fair Work Act.

These factors include whether you were notified of any poor performance, (if the termination of your employment related to a performance issue); whether you were warned about your performance and then were given an opportunity to respond to any allegations supporting or tending to support the termination of your employment; and whether you were unreasonably denied a support person when you requested a support person to attend with you during our disciplinary meeting leading up to the termination of your employment.

When hearing unfair dismissal applications, the Commission will consider a number of factors in determining whether or not your dismissal was harsh unjust or unreasonable.

Who decides whether a dismissal has been unlawful?

The Fair Work Commission hears unfair dismissal applications including whether as an employee you have a right to commence and pursue an unfair dismissal application. If you are alleging an unlawful termination of employment, then you may have rights to pursue your application to a court.

What to take into account when deciding whether to make an unfair dismissal claim

Some of the key factors you should be looking for when you're deciding to pursue an unfair dismissal application include: whether or not you likely to obtain compensation or reinstatement as a result of the termination of your employment; the extent of compensation you could have expected to receive following the termination of your employment (having regard to any payments which the employer has already made to you since termination of your employment); and more importantly, the strengths of your case, knowing that you have to establish that there is no valid reason for the termination of your employment, and further, the termination of your employment is harsh, unjust and unreasonable.

What happens if you dispute your employer’s version of the events leading up to the termination?

Conflicting versions of events often occur. You might as an employee allege that a certain course of events occurred and the employer on the other hand alleges something entirely different. This doesn't mean that you will not have a good case for unfair dismissal. Ultimately the Commission will hear your evidence and will hear the employer’s evidence and come to a view as to whether your version of events is the likely or probable version.

Do you need to have evidence to support version of events?

It's important to have a body of evidence to support your version of events when pursuing an unfair dismissal application because it adds to and gives credibility to your application.

What type of evidence should I have to support my version of events?

It's always handy to have independent or documentary evidence to support what occurred on any contested facts. For example, I had an employee as a client against whom it was alleged that she failed to document an order of stock. In this particular instance, to her benefit, our client provided evidence showing that she in fact did document the matter, so there was a supporting evidence for her version of events.

Do the benefits outweigh the disadvantages of pursing an unfair dismissal claim?

What drives whether or not you should make an unfair dismissal claim is the extent of loss which you have sustained, or which has resulted or likely to result from the termination of employment. For instance, if you were earning a certain wage and you no longer were able to draw that income, then that is an important consideration for you to pursue an unfair dismissal application.

Of course, you have to weigh that against whether you will be able to find alternative employment very quickly.

I’ve also had some employees take cases to the Commission because there are implications for their future employment prospects, or because they need that factual finding that their employment was unfairly dismissed in order to progress further in their career elsewhere.

Should you contact a lawyer if I think your employer is targeting you unfairly?

Many of our inquiries from clients who ultimately pursue unfair dismissal claims are from workers who feel that they are being targeted by the employer and that they are unfairly treated. They feel that the employer is setting them up for failure so that they could somehow in the future legitimately try to terminate their employment.

In these circumstances, we are able to advise on how clients can best protect themselves from that point in time so that in the event there is a termination of their employment in the future, their case is strengthened by some of the things they do prior to any disciplinary action taken by their employer.

What steps can you take if your employer is targeting you unfairly?

The types of strategies we advise clients to adopt prior to any decision to terminate their employment by the employer may include recording on a daily basis, events which have taken place in the workplace, such as in a diary, which is a good source of evidence to support what has happened at a particular time.

In some circumstances, clients are advised to document their complaint in writing to the employer so as a record what has occurred at any particular time and also so that at a later stage – which may well be during an unfair dismissal hearing – the employer may not be able to challenge or contest the employee’s version of events.