Losing your job can often come as a bitter, embarrassing, and seemingly unjust experience. However, there is a silver lining. You may be able to challenge this unpleasant situation through an unfair dismissal claim.
The Fair Work Act 2009 specifies that dismissal is unfair (and consequently illegal) if it has been executed in a manner that can be categorized as “harsh, unjust or unreasonable”. If you find yourself in a situation where your dismissal aligns with such definitions, you could be a potential candidate for an unfair dismissal application with the Fair Work Commission.
Understanding the rules and regulations around dismissals is pivotal for employers and employees alike. The following article offers insights into the possibilities of making a claim for unfair dismissal and the process involved.
Eligibility for an Unfair Dismissal Claim:
Your eligibility for an unfair dismissal claim is contingent on numerous conditions, which include but are not limited to:
- The actual occurrence of dismissal
- Your legal employee status (not an independent contractor or volunteer)
- The identity of your employer
- The size of your employer’s workforce
- Your employment duration
- Your annual income
As a rule of thumb, an unfair dismissal claim may not be applicable if:
- You are an independent contractor
- You are a volunteer or intern
- Your employment terminated as per the stipulated contract period
- Your employment period is less than the minimum required, six months for employers with 15 or more employees or 12 months for employers with fewer than 15 employees
However, it’s important to note that these factors might not always be as straightforward as they seem, and certain exceptions may apply.
For instance, despite being designated as an independent contractor, if you have been treated like an employee in all functional aspects, you might still be eligible for an unfair dismissal claim. Likewise, if you can demonstrate exceptional circumstances that inhibited you from lodging your application in a timely manner, the Fair Work Commission may extend your application deadline.
In light of a recent dismissal, it’s imperative to promptly seek legal advice regarding your eligibility, enabling you to submit your unfair dismissal claim promptly. Reach out to Frontline Employment Defenders to see how we can assist you further.
Understanding “Harsh, Unjust or Unreasonable” Dismissal:
To classify a dismissal as unfair, you must provide evidence to the Fair Work Commission showing that your termination was harsh, unjust, or unreasonable, or a mix of these aspects.
Each unfair dismissal application is unique and frequently intricate, meaning there isn’t a simple, universal rule to determine if a dismissal was harsh, unjust, or unreasonable. Each case is evaluated individually by the Fair Work Commission.
In order to decipher whether your termination falls under these categories, it is crucial to promptly consult with a experienced IR/ER paid agents such as Frontline Employment Defenders to discuss your potential unfair dismissal claim.
Unfair Dismissal Application Process:
Post-application, your employer is granted the opportunity to provide a counter-response to your claim, explaining their reasons for considering the dismissal fair.
After receiving the employer’s response, the Fair Work Commission schedules a conciliation conference, typically conducted via phone. This conference aims to facilitate a discussion between you (or your representative) and your employer, encouraging resolution.
If conciliation fails, the case proceeds to a formal hearing before a Commission Member who acts in a similar capacity to a judge. The Commission Member reviews the evidence and hears witnesses before making a final determination on the dismissal’s fairness.
Given the emotional and complex nature of unfair dismissal claims, it’s beneficial to have an experienced employment agent to assist you, or reach out to Frontline Employment Defenders.
Time Constraints on Unfair Dismissal Claims:
Unfair dismissal claims have stringent time limits. As an employee, you have 21 days from the date of your dismissal to lodge an application with the Fair Work Commission. Late submissions are accepted only in exceptional situations.
Upon successful Unfair Dismissal Claim:
If the Commission Member rules your dismissal as unfair after the hearing, they can order your employer to either reinstate you or compensate you for your loss.
Reinstatement: The usual remedy for an unfair dismissal is the reinstatement of the employee’s position. If practicable, you would return to your previous job or a similar role, and the employer might be obligated to provide back pay from the date of dismissal.
Compensation: If reinstatement is unreasonable due to a damaged relationship with the employer, monetary compensation is the alternative remedy. Factors considered when calculating the compensation amount include the dismissal notice payments, earnings post-dismissal, the length of your service, and any attempts made to mitigate financial losses.
Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit https://www.fled.com.au