Introduction:
Experiencing a job loss can often invoke feelings of distress, insult, and the perception of being wronged. Yet, remember that you potentially have legal recourse – an unfair dismissal claim.
The Fair Work Act 2009 outlines that a dismissal could be considered unfair (and thus, illegal) if it is enacted in a way deemed “harsh, unjust or unreasonable.” If you think your termination aligns with these criteria, you might be entitled to submit an unfair dismissal application to the Fair Work Commission.
It is critical for both employers and employees to fully grasp their legal rights and duties under these regulations. This article aims to demystify the process of lodging an unfair dismissal claim and the ensuing procedure.
Qualifications for an Unfair Dismissal Claim:
Various criteria define your eligibility to file an unfair dismissal claim, such as:
- The status of your dismissal
- Your formal classification as an ’employee’
- Your employer’s identity
- Your workplace’s employee count
- The length of your tenure
- Your yearly remuneration
You might not be eligible for an unfair dismissal claim if:
- You function as an independent contractor
- You are a volunteer or intern
- Your contract reached its predetermined expiration date
- You haven’t fulfilled the minimum employment duration (six months for employers with 15 or more employees, 12 months for smaller entities)
- Your yearly salary exceeds $167,500
However, it’s worth noting that these guidelines are layered and exceptions could apply.
For instance, if your employer labelled you an independent contractor but treated you like an employee, you might qualify to lodge an unfair dismissal claim. Additionally, if you can present extraordinary circumstances causing your application delay, the Fair Work Commission may extend the deadline.
If you’ve recently experienced job loss, it’s crucial to promptly seek professional advice regarding your qualifications for filing an unfair dismissal claim. Our adept agents at Frontline Employment Defenders are ready to assist you.
Understanding “Harsh, Unjust, or Unreasonable” Dismissal:
To classify a dismissal as unfair, you must convince the Fair Work Commission that it was harsh, unjust, or unreasonable, or a combination thereof.
Each unfair dismissal application is unique and often convoluted, meaning no universal rule can ascertain if a dismissal was harsh, unjust, or unreasonable. The Fair Work Commission investigates each situation individually.
To ascertain whether your dismissal was harsh, unjust, or unreasonable, it’s crucial to seek immediate professional advice. Reach out to our proficient team at Frontline Employment Defenders to discuss your potential unfair dismissal claim.
Unfair Dismissal Application Process:
Once you file your application, your employer gets an opportunity to respond and give their justifications for the dismissal.
Upon receiving the employer’s response, the Fair Work Commission schedules a conciliation conference, typically held over a call. The conciliation aims to facilitate a discussion between you (or your representative) and your employer, striving to resolve the issues.
If conciliation fails to reach an agreement, a formal hearing ensues before a Commission Member, who operates similarly to a judge. They review the evidence, hear witnesses, and subsequently render a decision on the dismissal’s fairness.
Given the emotional intensity and complexity of unfair dismissal claims, having expert agents representing you can be highly beneficial. Our dedicated team at Frontline Employment Defenders has a wealth of experience advocating for unfair dismissal applicants. Should you need assistance with your application, don’t hesitate to reach out.
Timing of Unfair Dismissal Claims:
Unfair dismissal claims are bound by strict timelines. From your dismissal date, you have a 21-day window to lodge an application with the Fair Work Commission. Late applications are only considered under extraordinary circumstances.
What If Your Unfair Dismissal Claim Succeeds?
If the Commission Member decides that the dismissal was unfair after the hearing, they may order your employer to reinstate your position or provide monetary compensation for your losses.
Reinstatement: Reinstatement is a common resolution for unfair dismissal. If feasible, you would return to your previous role or a similar position, with equivalent duties, hours, and pay. Depending on the situation, your employer might be required to provide back pay from the dismissal date.
Compensation: If reinstatement is unviable due to deteriorated relations with your employer, financial compensation serves as an alternative. When determining compensation, several factors are considered including termination notice payments, earnings after dismissal, your tenure with the employer, your attempts to reduce financial losses, and other relevant matters.
Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit https://www.fled.com.au