“You’re fired!” – two little words that have such a huge impact.
One minute you are going about your day, minding your own business….and the next, you are walking out the door of your workplace with a box in hand full of all the stuff you’ve accumulated over your time with the company, asking yourself “What just happened!?”
No doubt you have one or more of the following questions and thoughts running through your mind:
Did I really just get fired?
What did I do wrong exactly?
That was so unexpected.
That was so unfair!
I can’t believe they would accuse me of doing that.
I don’t feel like this was handled fairly.
I wasn’t given a chance to defend myself.
They got the facts all wrong.
After all my years of faithful service, this is the treatment I get?
Was the dismissal even lawful?
In addition to these, you may be experiencing a multitude of different emotions and anxieties.
You might feel embarrassed over how you will break the “surprising” news to your friends and family. You might suffer a serious blow to your self-esteem. You might even experience physical symptoms like trouble sleeping, loss of appetite and nervousness. The list goes on.
Losing a job can have a significant impact on you and your family, so it pays to find out what your rights are and what you can do about it.
You’re Not Alone if you have been Unfairly Dismissed
In any given year, Australians bring thousands of unfair dismissal cases. Take 2018, when over 13,000 cases of unfair dismissal were filed with the Australian Fair Work Commission. Not only that, but the website received a whopping 367,348 page views regarding unfair dismissal, and Commission staff spoke with 19,376 telephone inquiries concerning unfair dismissal.
Since then, with economic complexities, lockdowns and enormous financial pressure on business, we would only expect those numbers to have gone up.
That’s a lot of data. But what does it all mean?
It means that you’re not alone.
Below is a rundown of unfair dismissal, how to navigate what can sometimes feel like an overwhelming legal process, and what you can expect during the procedure from start to finish.
What Is Unfair Dismissal?
Note: This article assumes that you are covered by the national workplace laws. Most employees engaged in private enterprise are covered by the national workplace laws (i.e. the Fair Work Act 2009). But this isn’t always the case. There are exceptions and in fact, the rules can vary from State to State. So, before you can establish whether you have been unfairly dismissed or not, you need to work out whether or not you are covered by the national workplace laws or a State-based law (e.g. the Industrial Relations Act Qld).
Harsh, Unjust or Unreasonable
Under the Fair Work Act 2009 in Australia, an employee who is protected from unfair dismissal under the Act, has been unfairly dismissed if:
- They have been dismissed; and
- The dismissal was harsh, unjust or unreasonable; and
- The dismissal was not consistent with the Small Business Fair Dismissal Code; and
- The dismissal was not a case of genuine redundancy.
No Two Unfair Dismissal Cases are the Same
A dismissal can be harsh, unjust and/or unreasonable for a variety of reasons and no two cases are identical. However, the Fair Work Commission will take into account a variety of factors in deciding whether a dismissal was harsh, unjust and/or unreasonable. These factors include:
- Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct;
- Whether the employee was notified of that reason;
- Whether the employee was given an opportunity to respond to that reason;
- Whether there was any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to the dismissal;
- Where the reason for unfair dismissal is related to unsatisfactory performance, whether the employee had previously been warned about unsatisfactory performance;
- The degree to which the size of the employer’s business would be likely to impact on the procedures it followed in effecting the dismissal;
- The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- Any other matters that the Commission finds to be relevant.
The category of ‘any other matters’ can be quite broad, but typically includes things like:
- your previous work performance;
- the impact of the unfair dismissal on your personal and economic situation.
- Whether or not you were treated differently compared to other employees in similar circumstances.
- Procedural fairness (or the lack of it).
- Whether you signed a forced resignation letter or you were told that your employment contract “expired” for example because you were pregnant.
A dismissal can also be unfair in circumstances where a small business employer (i.e. an employer with less than 15 employees) fails to comply with the Small Business Fair Dismissal Code in affecting someone’s dismissal.
Genuine redundancies do not constitute unfair dismissal.
When is an Employee Protected from Unfair Dismissal?
While you may be able to establish that your dismissal was unfair (because of one of the reasons outlined above), you need to first prove that you are a type of employee who is protected by the unfair dismissal laws to be eligible to bring an unfair dismissal application.
An employee of a national system employer who has been dismissed is protected from unfair dismissal and eligible to file an application in the Fair Work Commission if:
- They have completed the minimum employment period; AND
- They earn less than the high-income threshold (currently $158,600 per annum); OR
- Their employment is covered by a Modern Award or an Enterprise Agreement.
The minimum employment period is:
- 6 months – if your employer has 15 or more employees; or
- 12 months – if your employer has less than 15 employees.
Unfair Dismissal Examples
Sometimes it can be challenging to discern when you have been let go for legitimate reasons and when you have a case for unfair dismissal. Of course the simplest way to go from there is to get some legal advice from an employment lawyer. However in this section we’ll set out a few clear boundaries on either side of the spectrum.
Naturally though, like we said above, all cases turn on their owns facts – so don’t take this as a clear indication of your rights (or lack of them)!
In general you could safely say you have been unfairly dismissed if you were fired for things like reporting sexual harassment, refusing to compromise on employee rights (i.e., rest breaks), joining a trade union, asking to be paid your overdue wages, or taking time off for a legal obligation like jury duty.
On the other hand, your termination could well be lawful (provided the correct process was followed) if you repeated failed to turn up to work, were intoxicated on the job or sexually harassed another worker.
How Long Do I have to File for Unfair Dismissal?
You must file your application for unfair dismissal with the Fair Work Commission within 21 days after the dismissal takes effect (so the day after your last day is day 1).
If the last day of that period falls on a Saturday, Sunday or public holiday (in the place you are filing) then it pushes the time limit out until the next business day.
In real terms, that means you need to see an employment lawyer ASAP. If you leave it until day 20 you’re putting everyone under a lot of pressure to review your situation, ask questions that might be needed and get things done within such a short space of time.
What Evidence will Help your Lawyer with your Unfair Dismissal Case?
Looking at our formal requirements above, there are some helpful things you can do to prepare for your initial discussions with your lawyer. Most of these involve simply working through the evidence you have to support your case.
Of course we can help guide you through this as well, so don’t delay getting advice just because you haven’t lined up all these ducks.
Proof of Dismissal
While this may seem rather obvious, you first must prove that your employer dismissed you in the first place (as opposed to you quitting).
If things were done in writing, then this might be easy as you will have a termination letter.
Otherwise, though, you might like to jot down a summary of what happened to make it clear you had been fired, and when.
Income Threshold
To make it clear that you are under the income threshold for unfair dismissal claims (of $158,600 as we mentioned earlier) it can help to have your employment agreement and recent payslips which show your salary.
Satisfied Minimum Period of Employment
To establish the minimal period of employment for your unfair dismissal case, you will obviously need to be sure when you commenced your employment.
Again, this might be easy if you have a documented employment contract.
If not, it you cannot remember your first day you might be able to hunt back in your bank account records to see when your first pay arrived in your account, and work backwards from there to figure it out.
Otherwise phone records, email exchanges and the like can be helpful here.
Starting The Application
You start the unfair dismissal application by completing a Form F2, which is available online from the Commission’s website. You can also visit their office to fill out a physical application if you so choose.
Of course if you have one your lawyer will complete the form for you.
On this form you identify the core information such as your contact details, former employer’s contact details, and your legal representative’s details (if you have representation). You also must include your employment histories, such as when you started working at the employer, the date you got terminated, and the reason for your dismissal as given to you by your employer.
Possibly the most crucial step, you also must state why you believe you were wrongly terminated.
All of the questions are fairly straightforward and should not result in any confusion. Each question requires an answer with an appropriate amount of detail.
Application Fee
As you’d expect there is a fee to commence an unfair dismissal application . Each year (on 1 July), the Commission adjusts the application fee, so you must check the current amount online.
In recent years, the application fee has been around 60 or 70 dollars.
You can get an exemption from paying the application fee if you can demonstrate that it will cause you severe financial hardship. If this is the case, you can apply for a waiver. If this applies to you, you include a copy of the fee waiver form with your application.
Understanding the Unfair Dismissal Process
Once you have decided to file a case with the Commission, you can begin the unfair dismissal process. Here is a brief summary of the main steps along the way.
Bear in mind that an unfair dismissal application is a legal process (rather than a complaint against your past employer). You need to take the process seriously and follow the advice from your lawyers along the way.
The first step is applying and paying an application fee as described above.
After you have submitted your application, the Commission sends a copy of your application to your former employer. Your employer then has 7 days to respond to your application by filing their response.
The Commission will send a written notice with the date and time of a conciliation conference to you and your employer. Conciliation is a facilitated discussion in which the Commission attempts to assist the parties to resolve the matter through negotiations rather than through litigation. The conciliation is usually done by telephone.
If the parties cannot resolve at the conciliation time, it will move your application along the process. The next step is the hearing. A member of the Commission will review your claim at a formal hearing and decide the outcome of your application based on the evidence and arguments put before them.
Unfair Dismissal Payout
The typical payout for a successful unfair dismissal claim varies from individual to individual. If the Commission does rule in your favour, the actual amount of compensation you will receive depends significantly on the conditions surrounding your termination.
The maximum compensation you can get in an unfair dismissal claim is 6 months wages. There are a variety of factors that the Commission will consider in assessing a payout if you are successful at the hearing. However generally speaking, it is in both the employee’s and employer’s best interests to try and resolve the dispute at the teleconference stage. Outcomes are the teleconference are more certain, provide better closure and result in more favourable outcomes.
How Does The Commission Deal With the Case?
When you apply, your application gets its own case manager. The case manager is an employee of the Commission and is the person who prepares the file and moves it along the process.
It is important to note that your case manager is not there to answer questions about your application; they are merely there to move your file along in the process. They are not permitted to offer any legal advice regarding your application.
Frequently Asked Questions about Unfair Dismissal
Submitting an unfair dismissal application can be an overwhelming process. Here are some straightforward answers to some of the most frequently asked questions.
What do I get if I win an Unfair Dismissal Case?
Depending on the remedy you seek and the decision made by the Commission, you can either obtain reinstatement (with backpay for lost wages) or alternatively, you will receive financial compensation.
All in all, the compensation you could receive depends on the circumstances surrounding your termination.
What is the Unfair Dismissal Threshold?
Each country has its own unfair dismissal threshold limit. In the case of Australia, from 1 July 2020, the high-income threshold was $153,600 per annum. From 1 July 2021, it is $158,500.
How Likely is it That I Will Win my Unfair Dismissal Case?
In 2018, 13,415 unfair dismissal applications were filed. Of those applicants, only 159 had their applications granted. Bear in mind, however, that most applications are either resolved through the conciliation process, or settled at some stage prior to the hearing. In some instances, the applications are simply withdrawn.
In fact, a whopping 8285 cases were resolved at the conciliation, and 2379 were resolved before the conciliation took place.
So, how likely is it that you will win your unfair dismissal case? Well it’s more likely that your case won’t reach a hearing in the first place if you have a good lawyer who can work to achieve a resolution on your behalf.
With that in mind, only 263 cases were actually brought into a hearing, and 104 applications were rejected. That means, technically, the Commission granted more applications than they dismissed.
So, on the statistics at least, your chances are higher at winning than they are losing if your matter actually reaches a hearing.
How Much Will The Process Cost Me?
Unfortunately, it’s difficult to answer this question.
While you can represent yourself that’s not necessarily the best plan.
Realistically you should get a cost estimate or quote from your lawyer before proceeding so you can weigh the pros and cons at an individual level.
Do I Need A Lawyer?
As we said above, this is a legal process. Getting an employment lawyer is highly recommended, and doing otherwise can cause delay and potential harm to your case.
Will Future Employers Discriminate Against Me Because Of This?
In theory future employers are not permitted to discriminate because of past legal issues. You are also under no obligation to disclose your prior legal history.
What should you do if you think you have been unfairly dismissed?
If you think you had an unfair dismissal, it is important to seek advice urgently.
There is a strict 21-day timeframe that applies for lodging an unfair dismissal application in the Fair Work Commission. Applications must be made within 21 days of the dismissal taking effect. So quite literally, with each day that passes, your ability to bring an unfair dismissal claim is reduced.
There are many threshold issues and eligibility questions to consider before lodging an application for unfair dismissal remedy in the Commission.
You should seek legal advice from an employment lawyer before lodging an application to help improve your case prospects.
How Can Rubix Legal Help You?
At Rubix Legal, our passion is to help you find your voice in the workplace.
We frequently help employees with Unfair Dismissal claims. We offer a range of services, tailored to suit your individual and unique representation needs. You can read more about how we help clients here.
