Experiencing job loss can often leave you grappling with feelings of humiliation, unfairness, and disbelief. However, remember that every dark cloud has a silver lining. In your case, it could be challenging this setback through an unfair dismissal claim.
According to the Fair Work Act 2009, dismissals characterized as “harsh, unjust, or unreasonable” are deemed unfair, and hence, illegal. If your dismissal mirrors these descriptors, you may be well-positioned to lodge an unfair dismissal application with the Fair Work Commission.
Both employees and employers should be well-versed with the rules governing dismissals. This blog post will guide you on how to initiate an unfair dismissal claim and what procedures are involved.
Understanding Unfair Dismissal Claim Eligibility:
Several conditions influence your eligibility for an unfair dismissal claim. These encompass your dismissal status, legal employee status (not an independent contractor or volunteer), your employer’s identity, workforce size, employment duration, and annual income.
Generally, an unfair dismissal claim might not be feasible if:
- You are an independent contractor
- You serve as a volunteer or intern
- Your employment was terminated as per the contract terms
- Your service period is less than the minimum required (six months for employers with over 15 employees, 12 months for those with fewer)
Yet, certain exceptions may apply. For instance, you may still qualify for an unfair dismissal claim if you have been effectively treated as an employee despite being classified as an independent contractor. If you can show extraordinary circumstances that hindered timely application, the Fair Work Commission may allow an extension.
If you have recently lost your job, promptly seek legal counsel regarding your eligibility to file an unfair dismissal claim. Frontline Employment Defenders are ready to assist you.
Deciphering “Harsh, Unjust or Unreasonable” Dismissal:
To make a case for unfair dismissal, you must demonstrate to the Fair Work Commission that your job termination was harsh, unjust, or unreasonable.
Given the uniqueness and complexity of each unfair dismissal application, there’s no simple rule to decide if a dismissal was indeed harsh, unjust, or unreasonable. Each case is individually assessed by the Fair Work Commission.
If you suspect your termination could be classified under these categories, promptly reach out to expert IR/ER paid agents like Frontline Employment Defenders.
The Unfair Dismissal Application Journey:
Once you have filed the application, your employer will have an opportunity to respond, providing reasons for considering the dismissal fair.
Upon receiving this response, the Fair Work Commission arranges a conciliation conference, usually conducted via a phone call. The goal is to stimulate a resolution-oriented conversation between you (or your representative) and your employer.
If the conciliation does not yield an agreement, the case advances to a formal hearing presided over by a Commission Member, acting in a role similar to a judge. This member evaluates the evidence and testimonies before reaching a final verdict.
Given the complexities involved, it’s beneficial to have a seasoned employment agent by your side. Connect with Frontline Employment Defenders for expert assistance.
Understanding Time Constraints:
Unfair dismissal claims are subject to stringent time limits. You have 21 days from the date of dismissal to lodge an application with the Fair Work Commission, with late submissions entertained only in exceptional circumstances.
What Happens When You Win?
If the Commission Member deems your dismissal unfair, they can order your employer to either reinstate you or compensate you for your loss.
Reinstatement, or resuming your old position, is the usual recourse. However, if mending the employer-employee relationship is impractical, financial compensation comes into play. The compensation is calculated based on several factors, including dismissal notice payments, post-dismissal earnings, the length of your service, and any attempts made to mitigate financial losses.
Contact Frontline Employment Defenders at 1300 089 353 or visit https://www.fled.com.au today, and let us help you navigate this challenging path.