Introduction:
The moment of job loss can feel like an eclipse, casting shadows of humiliation, a sense of injustice, and bewilderment. However, remember that it may not be the end of the road. There’s a possible avenue to challenge this predicament – an unfair dismissal claim.
In the purview of the Fair Work Act 2009, a dismissal can be considered unfair if it is “harsh, unjust, or unreasonable”. If your termination corresponds with these descriptors, you might be poised to make an unfair dismissal application with the Fair Work Commission.
Grasping the norms that govern dismissals is essential for both employers and employees. This blog illuminates the path to making an unfair dismissal claim and guides you through the involved process.
Determining Eligibility for an Unfair Dismissal Claim:
Several factors play a part in determining your qualification for an unfair dismissal claim, such as the nature of your termination, your employment status, your employer, the size of their workforce, your tenure, and annual earnings.
Commonly, an unfair dismissal claim may not hold if:
- You are identified as an independent contractor
- You volunteer or intern at the organization
- Your employment came to a close as per the agreed contract duration
- You have not served the minimum required period (six months for employers with 15 or more employees and 12 months for those with fewer)
Nonetheless, these factors are not always clear-cut, and exceptions may exist. For example, despite being an independent contractor, if your work role essentially mirrored an employee, you might qualify for an unfair dismissal claim. The Fair Work Commission could also permit an extended application deadline under exceptional circumstances.
If you’ve recently faced job loss, it’s crucial to seek advice promptly to gauge your eligibility for filing an unfair dismissal claim. The team at Frontline Employment Defenders is here to help.
Dissecting “Harsh, Unjust or Unreasonable” Dismissal:
To establish a dismissal as unfair, you need to illustrate to the Fair Work Commission that your job termination was harsh, unjust, or unreasonable.
Each unfair dismissal application is distinct and often fraught with complexity, meaning a universal rule to ascertain whether a dismissal was harsh, unjust, or unreasonable doesn’t exist. The Fair Work Commission evaluates each case on an individual basis.
To identify if your termination qualifies under these categories, it’s vital to engage with professional IR/ER paid agents like Frontline Employment Defenders at the earliest.
Navigating the Unfair Dismissal Application Procedure:
After you lodge your application, your employer has the right to respond, articulating why they believe the dismissal was fair.
Following this response, the Fair Work Commission convenes a conciliation conference, typically held over a phone call. This is intended to foster a resolution-centric discussion between you (or your representative) and your employer.
Should the conciliation process not yield a resolution, the case advances to a formal hearing presided over by a Commission Member, functioning similar to a judge. This member reviews the evidence and testimonials before drawing a final conclusion.
Considering the emotional and procedural intricacies of unfair dismissal claims, it’s advisable to have an experienced employment agent assisting you. Frontline Employment Defenders is here to provide expert support.
Time Constraints on Unfair Dismissal Claims:
Strict timelines govern unfair dismissal claims. You have 21 days from the day of your dismissal to submit an application with the Fair Work Commission. Only in exceptional scenarios are late submissions considered.
What Lies Ahead Upon a Successful Claim?
If the Commission Member rules your dismissal unfair, they can order your employer to either reinstate you or compensate you.
Reinstatement is the usual solution, implying you return to your previous role. However, if a harmonious relationship with the employer is untenable, financial compensation serves as the alternate resolution. This compensation takes into account several factors like the dismissal notice payments, earnings after dismissal, your service duration, and any attempts made to alleviate financial losses.
Contact Frontline Employment Defenders at 1300 089 353 or visit https://www.fled.com.au for comprehensive assistance.