Introduction:
Losing your job can often trigger feelings of embarrassment, indignity, and a sense of injustice. However, it’s important to realize that you may have a legitimate legal remedy – an unfair dismissal claim.
Under the provisions of the Fair Work Act 2009, a dismissal can be deemed unfair (and hence illegal) if it’s executed in a way that’s deemed “harsh, unjust, or unreasonable.” If you believe your termination fits this definition, you might be eligible to submit an unfair dismissal application to the Fair Work Commission.
It’s vital that employers and employees alike understand their rights and obligations under these laws. In this article, we’ll explore the potential for lodging an unfair dismissal claim and how the process unfolds.
Who Can File an Unfair Dismissal Claim?
Several factors influence your eligibility to file an unfair dismissal claim, including:
- Whether or not you’ve been dismissed
- Your official status as an ’employee’
- The identity of your employer
- The size of your workplace
- The duration of your employment
- Your annual income
However, you may not qualify for an unfair dismissal claim if:
- You are an independent contractor
- You are a volunteer or intern
- Your contract ended due to the expiry of the contract period
- You haven’t met the minimum employment period (six months for companies with 15 or more employees, 12 months for those with less)
- Your annual wage is more than $167,500 as at July 2023
However, it’s crucial to note that these guidelines can be complex and exceptions may exist.
For instance, even if your employer designated you as an independent contractor, if you were treated like an employee, you might still qualify for an unfair dismissal claim. Additionally, if you can demonstrate exceptional circumstances that delayed your application, the Fair Work Commission might grant you a time extension.
If you’ve recently lost your job, it’s essential to quickly consult with professional agents regarding your eligibility to lodge an unfair dismissal claim. Get in touch with our paid agents at Frontline Employment Defenders for guidance.
What Constitutes a “Harsh, Unjust, or Unreasonable” Dismissal?
To label a dismissal as unfair, you must prove to the Fair Work Commission that it was harsh, unjust, or unreasonable, or a combination thereof.
Because the context of every unfair dismissal application is distinct and often intricate, no uniform rule can determine if a dismissal was harsh, unjust, or unreasonable. The Fair Work Commission reviews each case individually.
To determine if your dismissal qualifies as harsh, unjust, or unreasonable, it’s vital to seek immediate advice from professionals experienced in employment law. Contact our knowledgeable representatives at Frontline Employment Defenders for consultation on your potential unfair dismissal claim.
How Does the Unfair Dismissal Application Process Work?
After your application submission, your employer will have the chance to respond and provide their reasons for considering the dismissal fair.
Once the employer’s response is received, the Fair Work Commission will schedule a conciliation conference, usually conducted via telephone. The conciliation aims to foster a discussion between you (or your legal representative) and your employer to work through the issues and strive towards a resolution.
If the conciliation does not lead to an agreement, the case will progress to a formal hearing with a Commission Member acting similarly to a judge. After examining the evidence and listening to witnesses, the Commission Member will deliver a formal decision on the fairness of the dismissal.
Considering the complexities and emotional toll of unfair dismissal claims, having experienced agents to represent you can be extremely beneficial. Our dedicated team at Frontline Employment Defenders has vast experience advocating for unfair dismissal applicants. If you require assistance with your application, please reach out to us.
Time Constraints on Unfair Dismissal Claims:
Unfair dismissal claims adhere to strict timelines. From your dismissal date, you have 21 days to lodge an application with the Fair Work Commission. Applications submitted after this timeframe are accepted only under exceptional circumstances.
What Happens If Your Unfair Dismissal Claim Succeeds?
Following the hearing, if the Commission Member rules that the dismissal was unfair, they may order your employer to reinstate you or provide compensation for your losses.
Reinstatement: Reinstatement is a typical resolution for unfair dismissal. If possible, you would resume your previous role or a comparable one, with similar duties, hours, and wages. Depending on the circumstances, your employer may be obliged to provide back pay from the dismissal date.
Compensation: If reinstatement is not feasible due to deteriorated relations with your employer, financial compensation is an alternative solution. Factors taken into account when determining compensation include termination notice payments, post-dismissal earnings, your service duration with the employer, your efforts to mitigate financial losses, and other relevant aspects.
Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit https://www.fled.com.au