Experiencing job loss is often a bitter pill to swallow – it can feel humiliating, unjust, and absolutely unfair. Nonetheless, there could be a silver lining to this cloud. One could potentially challenge such adversity by leveraging an unfair dismissal claim.
The Fair Work Act 2009 clearly states that a dismissal can be deemed unfair (thus illegal) if carried out in a way that can be described as “harsh, unjust or unreasonable”. If you find that your dismissal echoes such classifications, you may have grounds to file an unfair dismissal application with the Fair Work Commission.
Both employers and employees should be conversant with the regulations surrounding dismissals. The subsequent article delves into how to lodge an unfair dismissal claim and the involved procedures.
Do You Qualify for an Unfair Dismissal Claim?
Several factors dictate your eligibility for an unfair dismissal claim, including but not restricted to:
Your dismissal status
Your legal status as an employee (not an independent contractor or volunteer)
Your employer’s identity
The size of your employer’s staff
Duration of your employment
Your yearly income
Typically, you might not be eligible for an unfair dismissal claim if:
You are an independent contractor
You are an intern or a volunteer
Your employment ended as per the specified contract period
Your tenure is less than the minimum requirement, i.e., six months for employers with more than 15 employees and 12 months for those with fewer than 15 employees
However, these factors may not always be black-and-white, and exceptions could occur.
For example, even if your status is that of an independent contractor, if you have been practically treated like an employee, you could still be eligible for an unfair dismissal claim. Similarly, if you can prove extraordinary circumstances that delayed your application submission, the Fair Work Commission might consider an extension.
In case of recent dismissal, immediately consult a legal professional regarding your eligibility, thus enabling a timely submission of your unfair dismissal claim. Contact Frontline Employment Defenders for further assistance.
What Constitutes “Harsh, Unjust or Unreasonable” Dismissal?
In order to label a dismissal as unfair, you must furnish proof to the Fair Work Commission that your termination was harsh, unjust, or unreasonable, or a combination thereof.
Given that each unfair dismissal application is distinct and often complex, there isn’t a one-size-fits-all yardstick to determine if a dismissal was harsh, unjust, or unreasonable. Each case is individually assessed by the Fair Work Commission.
It’s essential to immediately seek counsel from skilled IR/ER paid agents like Frontline Employment Defenders to understand if your termination falls under these categories.
Process of Unfair Dismissal Application:
Once you’ve lodged the application, your employer has a chance to counter your claim by giving reasons for considering the dismissal fair.
After this response, the Fair Work Commission organizes a conciliation conference, typically over a phone call. This conference intends to stimulate dialogue between you (or your representative) and your employer, aiming to resolve the issue.
In case conciliation isn’t successful, the case advances to a formal hearing before a Commission Member who acts akin to a judge. The Commission Member scrutinizes the evidence and listens to witnesses before giving a final verdict on the dismissal’s fairness.
Given the emotional turmoil and intricacies involved in unfair dismissal claims, it’s advantageous to have a seasoned employment agent guide you, or connect with Frontline Employment Defenders.
Time Limits for Unfair Dismissal Claims:
Strict time restrictions apply to unfair dismissal claims. You have 21 days from the date of dismissal to file an application with the Fair Work Commission. Extensions are only granted in exceptional circumstances.
Outcome of a Successful Unfair Dismissal Claim:
Should the Commission Member deem your dismissal unfair post the hearing, they may order your employer to either reinstate you or provide compensation for your losses.
Reinstatement: The default resolution for an unfair dismissal is reinstating the employee’s position. If feasible, you would return to your prior job or a similar role, and the employer might be mandated to offer back pay from the dismissal date.
Compensation: If rejoining is not practical due to strained relations with the employer, financial compensation is the alternative remedy. The compensation amount calculation takes into account factors like dismissal notice payments, post-dismissal earnings, your service tenure, and any steps taken to mitigate financial losses.
Get in touch with Frontline Employment Defenders at 1300 089 353 or visit https://www.fled.com.au for further assistance