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.
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.
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.
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.
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.
If you’d like to have a quick chat to see if it looks like you have a case, then our complimentary 20-minute call option is the perfect place to start.
The information provided on this page is of a general nature only and is not to be relied upon as legal advice applicable to your specific circumstances. Specific legal advice is provided through our consultation sessions.