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Unfair Dismissal Applications
For an employee, there are few situations more stressful than the unjust termination of employment. If your employment has ended in circumstances that you believe were unfair, you may be able to pursue an unfair dismissal claim in the Fair Work Commission. Our employment lawyers regularly assist employees with such claims, which can lead to a range of outcomes – including compensation for loss of income or, where appropriate, reinstatement of employment.
Unfair Dismissal eligibility
In order to be covered by unfair dismissal laws, you must satisfy the eligibility criteria. In summary:
- you must have completed the minimum period of employment (6 months at a business that employs 15 or more employees, or 12 months for a business that employs less than that);
- if you were a casual employee, you must have been employed on a regular and systematic basis and had a reasonable expectation of ongoing employment for the minimum period of employment; and
- you must earn below the high-income threshold* which is adjusted annually on 1 July.
*Employees who earn above the high-income threshold are still eligible if they are covered by a modern award or enterprise agreement.
You must also have been “dismissed” in the relevant sense. The table below sets out what types of dismissals are covered by the unfair dismissal regime.
|Dismissal IS covered by unfair dismissal regime||Dismissal IS NOT covered by unfair dismissal regime|
If you are eligible to pursue an unfair dismissal claim and have been “dismissed” in the relevant sense, the key question is whether your dismissal was harsh, unjust or unreasonable. Broadly speaking, this will depend on:
- whether your employer had a valid reason for the dismissal;
- whether your employer followed a fair process in carrying out the dismissal (for example, did your employer notify you of the proposed reason for the dismissal and give you an opportunity to respond to that reason before making a definite decision to terminate your employment?); and
- if the dismissal related to alleged unsatisfactory performance (as opposed to misconduct or lack of capacity) – whether your employer had warned you about the alleged unsatisfactory performance beforehand.
Other factors, such as the size of the employer’s enterprise, the length of the employee’s service and their employment record, can also be relevant.
Lodging an Unfair Dismissal application
If you believe that you have been unfairly dismissed, you should seek advice immediately. An employee must lodge an unfair dismissal application with the Fair Work Commission within 21 calendar days of the date that their dismissal took effect, unless there are exceptional circumstances justifying an extension of time.
Once an unfair dismissal application has been lodged, the Fair Work Commission will ordinarily schedule the matter for a conciliation conference. The conciliation conference is an opportunity for the parties to attempt to resolve the dispute by agreement. You can request various outcomes at conciliation in exchange for discontinuing your claim, such as compensation, that your termination be treated as a resignation, and / or that you receive a statement of service or reference letter.
If the matter does not resolve at conciliation, you can take it to a hearing before the Fair Work Commission. If the Fair Work Commission is satisfied that your dismissal was unfair, it has the power to order:
- reinstatement of employment; or
- if reinstatement is inappropriate, compensation for loss of income up to a maximum of 26 weeks of the employee’s pre-dismissal income.
It is important to note that in an unfair dismissal claim, compensation is only available for loss of income. Compensation is unfortunately not available for the very real shock, distress, humiliation or hurt that an employee may experience as a result of the dismissal. Furthermore, if an employee is receiving workers compensation payments or finds alternative employment shortly after their dismissal, these amounts will be taken into account in assessing the employee’s actual loss.
If you believe that you have been unfairly dismissed, our employment lawyers can assist you by:
- advising you on whether you have grounds to pursue an unfair dismissal claim;
- preparing your unfair dismissal application;
- representing you at a conciliation conference;
- attempting to negotiate a suitable settlement with your former employer; and
- if the matter does not settle, representing you at a hearing in the Fair Work Commission.
General Protections Claims
At RCT, our lawyers offer expert legal advice to people who have been dismissed from work and who may be better defended under general protections than by making an unfair dismissal claim.
You may have grounds to pursue a general protections claim if your employer takes “adverse action” against you:
- because you have exercised a workplace right, such as making a complaint or inquiry in relation to your employment;
- because of your race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; or
- because you have engaged in certain kinds of industrial activity.
Differences between Unfair Dismissal and a General Protections Claim
There are a number of key differences between an unfair dismissal claim and a general protections claim. These include:
- The eligibility criteria – generally speaking, general protections claims are open to a much wider range of people, including: casual employees; those who have not completed the minimum period of employment; those who earn above the high-income threshold (link to section on unfair dismissal above); prospective employees; and, in some circumstances, independent contractors.
- The type of activity that is prohibited – with some exceptions, general protections claims do not only apply to “dismissals” but extend to any kind of “adverse action” occurring in the workplace. “Adverse action” is defined broadly and can include any situation where an employer injures an employee in his or her employment, alters the employee’s position to his or her prejudice or discriminates between the employee and other employees. As such, it is possible to pursue a general protections claim while still working for a particular employer.
- The outcomes available – unlike unfair dismissal, compensation for a general protections claim can include a component for hurt and humiliation and is not limited to 26 weeks of the employee’s pre-dismissal income.
- The process – like unfair dismissal, the first step after lodging a general protections application is usually a conciliation conference facilitated by the Fair Work Commission. If, however, the matter does not resolve at conciliation and you wish to take it further, you will generally need commence proceedings in either the Federal Court or the Federal Circuit Court.
Like unfair dismissal, a general protections claim involving dismissal must be lodged within 21 calendar days of the date the dismissal took effect, unless there are exceptional circumstances justifying an extension of time. Therefore, it is important that you obtain advice as soon as possible.
Our Melbourne employment lawyers can help you decide which claim is more appropriate in your circumstances. It is important that you make your selection carefully, as it is not possible to pursue an unfair dismissal claim and a general protections claim in respect of the same conduct.