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For most employees who are employed by private enterprises, the unfair dismissal laws are set out in the Fair Work Act 2009.
For employees of local or state government, the unfair dismissal laws are set out in the Industrial Relations Act 2016 (Qld).
Not all employees are eligible to bring an unfair dismissal claim so it is important to first make sure you are eligible.
If you have been dismissed from your employment, you may be eligible to file an Unfair Dismissal Application in the Fair Work Commission seeking an unfair dismissal remedy (or in the Queensland Industrial Relations Commission in the case of public service employees). The below information relates to private sector employees only.
In Australia, if an employee meets the definition of a ‘national system employee’ under the Fair Work Act 2009 and they have been ‘dismissed’, they will be protected from unfair dismissal and will be eligible to pursue an unfair dismissal remedy if they meet the following criteria:
Contact us for more information if you are a public service employee wishing to determine your unfair dismissal rights.
Under the Fair Work Act 2009, a person has been unfairly dismissed if the Commission is satisfied that the employee (being an eligible employee) was dismissed and the dismissal was:
There are strict timeframes that apply to an unfair dismissal claim.
To proceed with an Unfair Dismissal Application the employee must lodge their claim within 21 days of the dismissal taking effect.
If you believe you are out of time it is crucial that you seek legal advice ASAP.
We may be able to assist you with pursuing an unfair dismissal claim outside of the 21-day timeframe if ‘exceptional circumstances’ exist.
If an eligible employee has been dismissed the next question becomes – was the dismissal harsh, unjust or unreasonable?
Whether or not a dismissal is unfair will depend on a number of factors and there are some exceptions to the general rule. For instance, if the dismissal was a ‘genuine redundancy’ or the employer is a ‘small business employer’ and they have complied with the Small Business Fair Dismissal Code in effecting the dismissal, then the dismissal will be fair.
A variety of factors must be considered by the Fair Work Commission in determining whether the dismissal was harsh, unjust or unreasonable. For instance:
Contact us for more information if you are a public service employee looking to pursue an unfair dismissal claim in the Queensland Industrial Relations Commission.
A small business employer is a business that employs fewer than 15 employees.
An unfair dismissal application must be lodged with the Fair Work Commission (or Queensland Industrial Relations Commission in the case of public service employees) within 21 days of the dismissal taking effect.
Once an application for unfair dismissal has been lodged with the Fair Work Commission, the matter will typically be listed for a conciliation conference. This is an opportunity for the employer and employee to resolve the unfair dismissal dispute.
Employees can be legally represented at conciliation conferences. If you require legal representation please get in touch.
If the dispute cannot be resolved at the conciliation conference, you will have a series of options available to you as to how you wish to proceed. This could include withdrawing your initial application, proceeding to an arbitration or a hearing before a member of the Fair Work Commission.
There are also a number of other steps that the Fair Work Commission may decide to take in managing the application. In some cases, the matter may also involve a jurisdictional hearing if the employer believes the Fair Work Commission does not have jurisdiction to deal with the application.
Contact us for more information if you are a public service employee pursing an unfair dismissal claim in the Industrial Relations Commission.
The Fair Work Commission charges an application fee for lodging an unfair dismissal application. The fee is adjusted annually on 1 July. The current fee as at July 2019 is $73.20.
In some circumstances the application fee may be refunded to you or waived. For example, if you decide to withdraw the unfair dismissal application before any conference or hearing or you are otherwise experiencing financial hardship.
For public sector employees lodging an application in the Queensland Industrial Relations Commission, there is no lodgement fee.
If you would like legal assistance and representation, please contact us here to find out about our bespoke unfair dismissal packages and pricing.
The Fair Work Commission must determine whether reinstatement is an appropriate remedy before considering any monetary remedy.
An order for reinstatement means that the employer must reappoint the employee back into their position or to a position with terms and conditions that are on par with the previous position.
In deciding whether reinstatement is appropriate or not the Fair Work Commission will consider a variety of factors.
If reinstatement is not appropriate, compensation may be ordered. The maximum compensation that can be awarded is a sum equivalent to 6 months wages.
There are a variety of factors that the Fair Work Commission will consider in assessing what amount of compensation should be awarded in each case.
If your employment has been terminated on the grounds of redundancy, it is important to ensure that the redundancy is ‘genuine’ and does not infringe upon your legal rights. If the redundancy is not genuine, you may be eligible to file an unfair dismissal application or general protections application. You can read more about unfair dismissal applications here.
A redundancy may be an unfair dismissal if the redundancy was not a ‘genuine redundancy.’
Under the Fair Work Act a ‘genuine redundancy’ occurs when the employee’s job is no longer required by the employer because of changes in their operational requirements; AND the employer has complied with an applicable obligation in a modern award or enterprise agreement to consult the employee about the redundancy.
The redundancy will not be genuine if it would have been reasonable in all of the circumstances for the employer to redeploy the employee within their business or an associated entity of their business.
Maybe. If you resigned because you were forced to do so because of certain conduct or behaviour engaged in by your employer or you felt like you had no real choice but to resign, you might be able to pursue an unfair dismissal claim.
Forced resignations are known as constructive dismissals.
If you are an independent contractor then you will not be eligible to claim unfair dismissal. This is because you are not an employee. If however your engagement as a contractor is a ‘sham arrangement’ and in truth you are an employee at law, then you might be able to pursue an unfair dismissal claim. You may also be entitled to backpay of wages and entitlements such as annual leave.
The Fair Work Act contains a number of general protection provisions that provide certain protections to national system employees and employers. It also provides certain protections to independent contractors, principals and other certain persons and organisations.
There are several different types of general protections. The most common type of General Protections claim is the one involving dismissal but claims can also relate generally to:
If you have been treated adversely because of one of the general protections, you may be eligible to pursue a general protections claim.
A common general protections claim is one involving workplace rights. An employer must not take adverse action against an employee because the employee has or has exercised (or proposed to exercise) a workplace right.
For example, an employer must not dismiss an employee because the employee made a complaint about their wages and entitlements. To give another example, an employer must not dismiss an employee because they are pregnant or have requested flexible work arrangements.
The process depends on whether the dispute in question involves a dismissal. Given that the most common type of general protection application involves dismissal, we have outlined this process only. If your situation does not involve dismissal, please contact us to discuss the process that will apply to you.
Once a general protections application (involving dismissal) has been lodged with the Fair Work Commission (or the Queensland Industrial Relations Commission registry in the case of public sector employees), the application will typically be listed for a telephone conciliation. This is an opportunity for the employer and employee to resolve the general protections dispute.
Employees can be legally represented at telephone conciliations. If you require legal representation please get in touch.
If the dispute cannot be resolved at the telephone conciliation, the presiding member will provide you with advice on your options moving forward. These typically include arbitration or a hearing before the relevant Court. If the Commission member is satisfied that reasonable attempts have been made to resolve the dispute and is unlikely to be resolved, they will issue a Certificate to that effect. You will then have the option to file a fresh claim in the relevant Court.
The Fair Work Commission charges an application fee for lodging a general protections application. The fee is adjusted annually on 1 July. The current fee as at July 2019 is $73.20.
In some circumstances the application fee may be refunded to you or waived. For example, if you decide to withdraw the application before any conference or hearing or you are otherwise experiencing financial hardship.
If you would like legal assistance and representation, please contact us here to find out about our bespoke general protections packages and pricing.
There are some important differences between an unfair dismissal claim and a general protections claim. The claim that is best suited to your circumstances will depend on a variety of factors. You can read more about unfair dismissal and general protections here.
If you would like to explore which claim is best suited to you, please get in contact.
Yes. Some of the general protections apply to contractors. For instance, a contractor is free to be a member of an industrial association or engage in industrial activities (and they are free to choose not to be so involved) without fear of adverse treatment.
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