Unfair Dismissal

Fair Work Commission

Have you been unfairly dismissed from your job?

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. Remedies can include reinstatement, compensation or a combination of the two.

There are a number of things to consider in assessing whether or not you have a claim for an unfair dismissal remedy. It is important that you seek legal advice before commencing a claim in order to ensure that you are eligible. If you believe you have a claim you can contact us here for assistance.

Who is eligible?

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:

The employee must have completed the ‘minimum period of employment’ that applies to their employment; AND
The employee must either (1) earn less than the ‘high income threshold’ (which is indexed every year and is $148,700 as at July 2019); or (2) their employment is covered by a Modern Award; or (3) an Enterprise Agreement applies to their employment.

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.

What constitutes a dismissal?

An eligible employee will have been ‘dismissed’ from their employment if their employment was either (1) terminated at the employer’s initiative; or (2) they were forced to resign because of certain conduct by the employer.

Was the dismissal fair?

If the employee is eligible to pursue an unfair dismissal remedy, the 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:

Was there a ‘valid reason’ for the dismissal connected to the employee’s capacity or conduct?
Was the employee notified of that reason?
Was the employee given an opportunity to respond to any reason related to their capacity or conduct?
Was there any unreasonable refusal by the employer to allow the employee to have a support person present in any meetings or discussions about the dismissal?
If the dismissal relates to ‘unsatisfactory performance’ by the employee, had the employee been warned about that unsatisfactory performance before the dismissal was effected?
Did the size of the employer’s business impact, or was it likely to impact on the procedure that was followed in effecting the dismissal?
Did the absence of a dedicated HR specialist or expert in the business impact, or was it likely to impact on the procedure that was followed in effecting the dismissal?
Are there any other relevant matters that the Fair Work Commission should consider?

What happens next?

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.

If you are not a national system employee you will not be eligible to file an unfair dismissal application in the Fair Work Commission. However, you may be eligible to pursue an unfair dismissal remedy through the Queensland Industrial Relations Commission. Contact us to find out more.

How can Rubix Legal help?