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If your employment has been terminated, contact us for advice and to arrange a free 30 minute legal consultation with an experienced lawyer to help you decide whether you should make an unfair dismissal claim.
Unfair Dismissal Laws
The unfair dismissal laws provide employees with the ability to apply to the Fair Work Commission to seek reinstatement or compensation when they are unfairly terminated from their employment.
An employee must make an unfair dismissal application to the Fair Work Commission within 21 days of the termination taking effect. Extensions for an application will only be granted to employees in exceptional circumstances.
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What is constructive dismissal?
Constructive dismissal is where an employee is forced to resign from their job because of the conduct of their employer.
In those situations, employees may still be able to make a claim for unfair dismissal.
What is Unfair Dismissal?
A dismissal is considered to be unfair if it is harsh, unjust or unreasonable. To determine this, the Fair Work Commission will consider the following:
- Whether there was a valid reason for dismissal of the employee
- Whether you were notified of the reason for dismissal
- Whether you were given an opportunity to respond to the reason for dismissal
- Whether your employer unreasonably refused to allow you to have a support person to assist you in any discussions relating to the dismissal
- If the dismissal related to unsatisfactory performance, whether you had been warned about your performance before the dismissal
- The size of the employer’s enterprise or business
- Whether the employer had any dedicated human resource management specialists or expertise in the business
- Any other relevant matters, such as the age of the employer and the length of employment
You may be entitled to compensation
If the Fair Work Commission decides that your dismissal is unfair, they will first consider whether reinstatement is appropriate. Reinstatement means an employee is reappointed into the position they held immediately before the termination, or reappointed to another position on terms no less favourable than that position.
In addition to reinstatement, you may also be entitled to continuity of service and payment from your employer for wages lost since the dismissal.
Where reinstatement of employment is not appropriate, the Fair Work Commission may order your employer to pay you compensation. Compensation is calculated on the amount you would have received if you had not been dismissed. There are limits on the amount of compensation that an employer can be ordered to pay.
What is the likelihood of a positive outcome?
In our experience, most matters reach a favourable settlement, as neither party wants the stress and cost associated with a full legal hearing. However, there is a risk that your employer will not be willing to engage in settlement negotiations at the conference.
If your claim does not settle at the conference, the matter will proceed to a hearing before a Commissioner of the Fair Work Commission. As part of this process, both parties will be required to file legal evidence and make submissions. The hearing process can be complex and lengthy, so it’s usually in both parties’ legal interests to resolve the matter at the conciliation conference.
Strict time limits apply to lodge an unfair dismissal application. Applications must be filed within 21 days of the dismissal taking effect.
The Unfair Dismissal Process
Our experienced workplace and employment lawyers will help you understand your legal rights and options, and guide you through the unfair dismissal claim process to give you the best chance for a favourable outcome. We can also prepare your claim for you, and send it to the Fair Work Commission on your behalf.
After your claim has been received by the Commission, they will send it to your employer and ask them to respond. They will also arrange a conciliation conference.
A conciliation conference is similar to a mediation – both parties will be given an opportunity to state their case. The conciliation conference is facilitated by a conciliator appointed by the Fair Work Commission. After hearing the case from your side and your employer’s, the conciliator will hold private sessions with both parties to discuss the risks of the case and possible settlement options.